McNally v. Eckman
| Decision Date | 21 February 1983 |
| Citation | 466 A.2d 363 |
| Parties | John K. McNALLY, Jr., Defendant Below, Appellant, and Henry R. Kesterson, t/a Galaxy Limousine Service, Defendant Below, Appellant, v. Richard L. ECKMAN and Sheila M. Eckman, Plaintiffs Below, Appellees. . Submitted: |
| Court | United States State Supreme Court of Delaware |
Upon appeal from the Superior Court. Affirmed.
Morton Richard Kimmel, Wilmington (argued), Kimmel & Spiller, Wilmington, for appellant McNally.
Robert G. Carey (argued), Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, for appellant Kesterson.
F. Alton Tybout (argued), Tybout, Redfearn, Casarino & Pell, Wilmington, for appellees.
Before HERRMANN, C.J., HORSEY and MOORE, JJ.
In these appeals involving the alleged negligent operation of motor vehicles, defendant Henry R. Kesterson seeks reversal of a Superior Court judgment against him both as to liability and damages. Defendant John K. McNally, Jr. concedes liability but seeks a new trial on damages. The judgment against both defendants was in the amount of $2.9 million for the plaintiff Richard L. Eckman and $325,000 for his wife, Sheila M. Eckman.
This litigation arises from a collision between an airport shuttle van operated by Paul J. McKelvey, an agent of defendant Kesterson, and a pick-up truck operated by defendant McNally.
The material facts are not in dispute. Plaintiff Richard L. Eckman was a paying passenger in the van owned by Kesterson, trading as Galaxy Limousine Service. In the van at the time of the accident were the driver, Eckman and 11 other passengers.
As the van proceeded north on U.S. Route 13, it struck McNally's truck at the "T"-shaped intersection of Route 13 with Route 2. McNally, proceeding west on Route 2, had failed to stop at the sign controlling entry onto Route 13.
The evidence reveals that, at the time of the accident, McNally was driving his truck at least 12 miles over the speed limit; that he had been awake for at least 32 hours; that he was under the influence of alcohol; that McKelvey was driving the van at least 10 miles over the speed limit and that the collision would not have occurred had he been driving within the speed limit.
McKelvey and a van passenger were killed, and other van passengers sustained various injuries. Eckman sustained injuries that left him a paraplegic below the waist. He is permanently confined to a wheel chair; he has lost all sensation below the waist and all control of bowel and urinary functions; his lower body is deteriorating; and he faces constant pain and discomfort for the rest of his life.
Eckman and his wife brought this action against Kesterson and McNally on the ground of negligence. McKelvey's widow sued McNally alleging both negligence and wilful or wanton conduct. Motions to consolidate the actions were granted for separate trial of the issue of liability.
At the opening of the liability trial, the Court, over the objection of both Mrs. McKelvey and Kesterson, severed the McKelvey action on the ground that the jury would be confused by simultaneous consideration of both the issue of negligence and the issue of wanton conduct.
At the conclusion of the liability trial, the Trial Court directed a verdict against both defendants on the issues of negligence and proximate cause, submitting to the jury only the question of the relative degree of fault of each defendant. Kesterson requested that the Court charge the jury on the issue of McNally's wilful or wanton conduct as it related to Kesterson's case. The Court refused the request on the ground that the McKelvey action, brought on that ground, had been severed.
The jury prorated fault at 65% against McNally and 35% against Kesterson. The case then went on to trial before the same jury on the issue of damages.
Kesterson contends that the Trial Court committed reversible error in three aspects of the trial of the liability issue.
Kesterson contends that he was prejudiced unfairly by the Trial Court's severance of the McKelvey action; that the same jury should have been permitted to determine all liability issues arising from the collision because the issues were inexorably intertwined; that, as a result of the severance, he was denied a fair trial to which he was constitutionally entitled. We find this position untenable.
We endorse the general rule that, where the issues presented against one of two joint tortfeasors include wilful or wanton conduct and against the other ordinary negligence, the question whether to grant separate trials on the issues is within the Trial Court's sound discretion; and that determination will not be disturbed on appeal unless one of the parties has been prejudiced. See Anno., 174 A.L.R. 734, 744-46. The record does not reveal such prejudice to Kesterson. Indeed, the likelihood of prejudicial confusion of the jury resulting from joint trial of the issues supports the Trial Court's severance. The Court did not abuse its discretion.
Kesterson further contends that the Trial Court committed reversible error in directing the verdict and in refusing to submit to the jury the issue of whether McKelvey's negligence was a proximate cause of the collision.
According to Kesterson, the Trial Court, in ruling that Kesterson was negligent and that his negligence was a proximate cause of the collision, implicitly ruled that McKelvey, his agent, was negligent and that such negligence similarly was a proximate cause. Kesterson points to the general rule that questions of negligence and proximate cause ordinarily are issues of fact for the jury, Faircloth v. Rash, Del.Supr., 317 A.2d 871 (1974); he further argues that McKelvey could not reasonably have anticipated that another driver would run a stop sign at an excessive speed and while under the influence of alcohol; that McKelvey's excessive speed merely "gave rise to the occasion"; that the real cause was McNally's conduct.
Preliminarily, we reject out of hand Kesterson's "reasonable anticipation" argument, the tenor of which seems to be that McKelvey was justified in breaking the law on the assumption that another would not. The erroneous nature of the assumption is self-evident.
As to proximate cause: As this Court stated in Faircloth, supra, "when undisputed facts compel only one conclusion, the Trial Court has a duty to enter a judgment consistent therewith." 317 A.2d at 871. In this case, expert testimony established that the excessive speed of Kesterson's van not only "gave rise" to the collision, but the collision would not have occurred but for the excessive speed. Additionally, we note that Kesterson introduced no evidence to establish that his agent's conduct was a remote rather than proximate cause of the accident.
The Court did not err in directing the verdict.
Finally, Kesterson asserts that he was denied a fair trial because of the Trial Court's refusal to instruct the jury regarding the issue of McNally's wilful or wanton conduct, coupled with certain comments by counsel for the plaintiffs and McNally during their summations to the jury on the issue of damages.
The plaintiffs' attorney referred to McNally as having "drifted into a totally socially unacceptable condition" and characterized McKelvey's conduct as "deliberate [and] calculated." He later argued that "McNally will be a little bit at fault, but [there was] a calculated disregard by McKelvey." McNally's counsel argued that the "actions of Kesterson's agent, McKelvey, were a conscious disregard...." Kesterson (with obvious inconsistency) objected on the ground that counsel, in effect, were arguing wilful or wanton conduct; and he requested the Court to instruct the jury to disregard that issue.
As to the Trial Court's refusal to instruct the jury on the issue of McNally's allegedly wilful or wanton conduct: Kesterson reiterates his "unfair prejudice" argument against severance of the McKelvey action. As we have concluded, the Court properly severed the actions because of the likelihood of prejudicial confusion resulting from joint trial of the issues. Rejection of Kesterson's renewed attempt to interject the issue of wilful or wanton conduct at a later stage was a proper corollary to the Court's prior ruling. The Court did not abuse its discretion in this connection.
As to the comments of counsel regarding McKelvey: The comments were clearly inappropriate in view of the Trial Court's repeated efforts to dissociate from the instant case the issue of wilful or wanton conduct. The record, however, does not justify a holding of unfair prejudice or denial of fair trial. We find, therefore, that the Trial Court did not abuse its discretion in this regard.
McNally contends that the Trial Court committed reversible error in its denial of his motions for mistrial after police officers, testifying for the plaintiffs, referred to (i) his refusal to take a breathalyzer test after the accident; (ii) the criminal proceedings against him for criminally negligent homicide; and (iii) the presence of McNally's "girlfriend" in the truck at the time of the accident (after the plaintiffs' attorney mentioned during his opening statement that McNally was married). McNally asserts that admission of the above testimony was error as a matter of law and resulted in a "punitive" and "outrageously high" verdict.
As to the breathalyzer: McNally relies upon Law v. Gallegher, Del.Supr., 197 A. 479 (1938) in support of his argument that admission of testimony regarding his consumption of alcohol was improper since neither the complaint nor the pre-trial stipulation and order contained allegations of intoxication. Gallegher, however, is inapposite on its facts. The record clearly shows that McNally was apprised with "fullness and fairness" of what he could expect to defend against at trial. In light of his pre-trial motion to suppress the evidence, the conclusion is inescapable. Compare Gallegher, 197 A. at 482.
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