Morinville v. Morinville

• Decision Date: 14 June 1976
• Docket Number: No. 74-64-A,74-64-A
• Citation: 116 R.I. 507,359 A.2d 48
• Parties: William P. MORINVILLE v. Lana MORINVILLE et al. ppeal.
• Court: Rhode Island Supreme Court

Page 48

359 A.2d 48

116 R.I. 507

William P. MORINVILLE v. Lana MORINVILLE et al.

No. 74-64-Appeal.

Supreme Court of Rhode Island.

June 14, 1976.

[116 R.I. 518] Joseph E. Marran, Jr., Pawtucket, for plaintiff.

Higgins, Cavanagh & Cooney, Joseph V. Cavanagh, Providence, for defendants.

OPINION

KELLEHER, Justice.

In this negligence action the plaintiff has sued the driver and the owner of an automobile which he claims struck him, thereby inflicting serious bodily injury. The defendant driver is the plaintiff's former wife. ¹ The defendant Larry Yeater, whose wife lived at one time in the Morinville home as a foster child, is the owner of the vehicle. A Superior Court jury returned a verdict in favor of the defendants. The trial justice denied the plaintiff's motion for a new trial, and the plaintiff is before us on an appeal, challenging the denial of the new trial motion and certain evidentiary rulings made by the trial justice.

This is not the first time that William and Lana have come to court to resolve their disputes. Earlier they were in the Family Court, where the wife was awarded an absolute divorce and custody of the couple's two young children. The final decree gave the husband certain visitation rights. However, sometime after its entry a dispute arose as to how, when, and where plaintiff could see the children. It appears that arrangements were worked out whereby on Sunday afternoons the children and their father would meet at the Dr. Patrick I. O'Rourke Children's Center in Providence and spend the afternoon together at this state-operated facility.

Early on Sunday afternoon, October 26, 1969, Mrs. Demers drove to the Children's Center and left the children with their father. She returned later in the day to pick them up, and what occurred during the pickup led to this litigation. The husband's testimonial version of what transpired was directly contradictory to his ex-wife's.

Upon her arrival at the Children's Center Mrs. Demers parked the Yeater vehicle next to several of the buildings located nearly 100 yards from the athletic field where the children and their father had been playing. The children ran to their mother and entered the back-seat portion of the car. According to the father, he approached the driver's side of the automobile with the children's coats and a few Halloween novelties in his hand. The father attempted to deliver his gifts to the children, but they apparently rejected his overtures.

The husband then testified that following a somewhat heated verbal exchange between him and his former spouse, she started the car, shifted into reverse, accelerated rapidly, and at the same time turned the wheels to the right. As the car moved backward, the left front fender and bumper swung to the left, striking plaintiff in the left knee with considerable force.

The plaintiff presented testimony indicating hospitalization and surgery, a substantial loss of income, continued pain and suffering, and a permanent impairment of his earning capacity, all of which he claims is attributable to his injured knee. In addition, Mr. Morinville testified that a friend and former business associate had witnessed the incident but refused to come to court because he did not wish to get involved. He conceded that no attempt was made to obtain the missing witness' deposition. ²

Mrs. Demers, however, told a different tale. The plaintiff, she said, approached the car empty-handed and proceeded to lean against the front left fender of the vehicle. A conversation ensued in which his language became so heavily laced with profanities that she had to ask him to refrain from using this type of language in the presence of the children. Moreover, she also asked him to move so that they could leave the premises. Mrs. Demers insisted that as she put the car into reverse gear and started to move, plaintiff pounded the left front of the automobile with his fists and uttered a few expletives. He moved back from the moving car and within a matter of seconds the wife and her passengers left the Children's Center. She maintained that the car travelled backwards in a straight line, and at no time struck the plaintiff. She also denied that his business associate was present at the time of this incident. Rolande Yeater, the defendant-owner's wife, was a front-seat passenger and witnessed the whole sequence of events. She appeared as a witness and corroborated the testimony given by Mrs. Demers.

The plaintiff contends that the trial justice merely rubberstamped the jury's verdict because he never discussed the evidence or gave reasons why he thought the jury's verdict should remain undisturbed. It is true that in this jurisdiction a trial justice, in considering a motion for a new trial, is obligated to make an independent appraisal of the testimony, during which he may pick and choose whom and what he will believe as he weighs the evidence and assesses credibility. Sweet v. Hemingway Transp., Inc., 114 R.I. 348, 352, 333 A.2d 411, 414 (1975); Gordon v. Campanella Corp., 112 R.I. 417, 420, 311 A.2d 844, 847 (1973); Ruggieri v. Beauregard, 110 R.I. 197, 199, 291 A.2d 413, 414 (1972); Barbato v. Epstein, 97 R.I. 191, 193, 196 A.2d 836, 837 (1964). In ruling on a motion for new trial, the trial justice need not make an exhaustive analysis of the evidence or state all his conclusions as to the weight of the evidence or the witnesses' credibility, but he should at least refer sufficiently to what motivates him to rule as he does so that the reviewing court can determine whether he has overlooked or misconceived material evidence on a controlling issue or is otherwise clearly wrong. Fontaine v. Devonis, 114 R.I. 541, 543-44, 336 A.2d 847, 854 (1975); Wood v. Paolino, 112 R.I. 753, 755-56, 315 A.2d 744, 745 (1974). A pro forma approval of a jury verdict cannot be given the weight which we usually accord to a trial justice's decision on a new trial. Marcinko v. D'Antuono, 104 R.I. 172, 187, 243 A.2d 104, 112 (1968).

We have examined the decision given by the trial justice when he denied plaintiff's new trial motion. It is somewhat lacking in precision and clarity, and out of an abundance of concern for plaintiff's rights we will assume that the trial justice has failed to make the requisite independent evaluation of the evidence. Consequently, we will continue our consideration of this portion of his appeal with this assumption in mind.

The fact that a trial justice fails to do what is expected of him when he decides a new trial motion does not automatically give an appellant a new trial. In such circumstances we must examine the record for ourselves and grant a new trial if the evidence as we view it 'strongly preponderates' against the jury's verdict. Marcinko v. D'Antuono, supra, 104 R.I. at 187, 243 A.2d at 112. Since we cannot see or hear the witnesses, we have fashioned the rule that when a trial justice has erred in his consideration of a new trial, either by way of commission or omission, we will examine the record to determine if it contains any competent evidence which, if believed, would support the jury's verdict. Harter v. Home Indem. Co., 111 R.I. 340, 352, 302 A.2d 793, 800 (1973); Landes v. Faella, 106 R.I. 23, 28, 255 A.2d 724, 727 (1969) citing State v. Contreras, 105 R.I. 523, 253 A.2d 612 (1969). If there is, the verdict does not strongly preponderate against the evidence, and the jury's verdict will not be disturbed. DeSimone v. Manzi, 114 R.I. 30, 33, 327 A.2d 840, 842 (1974); Molleur v. City Dairy, Inc., 110 R.I. 58, 64, 290 A.2d 214, 218 (1972); Gilbert v. Girard, 109 R.I. 68, 74, 279 A.2d 919, 923 (1971).

When the case at bar came on for oral argument, we suggested to the parties that it might to beneficial to the bench, the bar, and the litigants if a comparison was made between our appellate rule and the rule invoked by the federal appellate courts when an appellant contends that the trial judge, in considering a motion for new trial, fails to properly evaluate the evidence. We acknowledge with gratitude the assistance given us by both counsel.

The law regarding the reviewability of a federal trial court's order granting or denying a motion for new trial because the verdict is against the weight of the evidence appears to have changed. 11 Wright & Miller, Federal Practice and Procedure: Civil § 2819 at 121 (1973). Not so many years ago the Supreme Court made the unqualified statement that a trial court's denial of a new trial motion claiming that the verdict was against the weight of the evidence 'would not be subject to review.' United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 248, 60 S.Ct. 811, 856, 84 L.Ed. 1129, 1181 (1940). The Court reasoned that if an error had been made, it involved a question of fact which, in turn, was a matter directed to the trial judge's discretion. Thirteen years later Judge Learned Hand reconfirmed this position by characterizing as 'too well established to justify discussion' the rule that '* * * erroneous orders granting or denying motions to set aside verdicts on the ground that they are against the weight of the evidence' are not reviewable. Portman v. American Home Products Corp., 201 F.2d 847 (2d Cir. 1953).

With the passage of time came a change in judicial thought relative to reviewability of new trial motions. Today the denial or granting of new trial motions in general, as well as those premised on the assumption that the jury's verdict is against the weight of the evidence, are reviewable and can be reversed upon a showing that the trial justice's decision constituted an 'abuse of discretion.' ³ When used in the context of new trial motions, the phrase 'abuse of discretion' has been described as an unfortunate choice of words. Massey v. Gulf Oil Corp., 508 F.2d 92, 94 n. 2 (5th Cir. 1975). Professor Moore in his treatise asserts that a finding of an abuse of discretion is merely another way of saying that the trial justice 'clearly...