Ohio Valley Construction Co., Inc. v. Dew

• Decision Date: 16 March 1976
• Docket Number: No. 8666.,8666.
• Citation: 354 A.2d 518
• Parties: OHIO VALLEY CONSTRUCTION CO., INC., a corporation, et al., Appellants, v. Willie David DEW, Appellee.
• Court: D.C. Court of Appeals

354 A.2d 518

OHIO VALLEY CONSTRUCTION CO., INC., a corporation, et al., Appellants, v. Willie David DEW, Appellee.

No. 8666.

District of Columbia Court of Appeals.

Argued September 10, 1975.

Decided March 16, 1976.

Bernard J. Harig, Washington, D.C., for appellants.

Louis Ginberg, Washington, D.C., for appellee.

Before REILLY, Chief Judge, and KERN and YEAGLEY, Associate Judges.

KERN, Associate Judge:

This appeal arises out of a multi-vehicle accident occurring on a ramp leading to the Southwest Freeway on November 5, 1969, which has since then produced three separate trials, including one mistrial. Two issues are presented for our determination : (1) whether the judge who presided over the first trial acted properly in vacating, some 16 months later, the judgment rendered there and (2) whether the judge who presided over the third trial properly admitted into evidence during its course certain testimony by an expert witness on behalf of appellee concerning visibility, sighting distances, and braking distances at the point of collision on the freeway ramp.

The convoluted procedural problem facing us requires a rather detailed explication of the facts. The evidence adduced at trial concerning the accident showed that on November 5, appellee Dew was proceeding in his car on the Southwest Freeway ramp behind an automobile driven by Raymond Wright. Wright changed lanes suddenly, causing Dew to slow down to avoid hitting Wright. Behind Dew on the ramp was a truck owned by Interstate Contracting Co., Inc. (ICC), and operated by Nathaniel Goodwin under authority of his employer, Ohio Valley Construction Co., Inc. (OVC). Inevitably, there was a collision between Wright's automobile, Dew's automobile, and the truck operated by Goodwin.

The parties' journey through the courts is even more complicated. First, on July 15, 1970, a complaint was filed in the name of Dew and his insurer, Hamilton Insurance Co. (Hamilton), against Goodwin and ICC. This action for property damages was identified as C.A. No. 13261-70, and the defendants in that case filed a third-party complaint against Wright. In April 1971, this case went to trial, resulting in a verdict and judgment by the court for Dew in the amount of $100 and for Hamilton in the amount of $1,735.38 against the defendants Goodwin and ICC. There was also a verdict in favor of third-party defendant Wright.

Some months later, and well after the filing of a praecipe indicating that the judgment had been satisfied, Dew moved to vacate that judgment.¹ Having filed a new action against some of the parties who had been defendants in No. 13261-70 to recover for personal injuries which he allegedly suffered in the accident, Dew discovered he would be faced in his personal injury action, No. 2117-72, with a defense of res judicata. The judge who had presided over trial of the property damage action held a hearing and vacated the judgment on November 22, 1972, purporting to act under Super.Ct.Civ.R. 60(b) (6).² The court made a finding that, despite the fact that Dew had acknowledged at the trial that he was the plaintiff and had been one of the named plaintiffs in the caption of the case, he had not been aware he was a party to the suit and had not authorized Hamilton to sue on his behalf.³ Hamilton then paid back the $1,835.38 that defendants had paid in satisfaction of the judgment.

The complaint in Dew's personal injury action, No. 2117-72, was filed in March 1972, and named OVC and Wright as defendants.⁴ After the judgment in No 13261-70 was vacated, the two actions were ordered consolidated on March 19, 1973, with No. 2117-72 to be tried band and No. 13261-70 to be tried by the court.

In the first jury trial of No. 2117-72, pitting Dew against OVC and Wright, a mistrial Occurred, and once more the parties went to trial. This third trial resulted in a jury verdict on March 19, 1974, in favor of Dew as against OVC for $9,000, but against Dew and in favor of Wright.⁵

I.

We consider first appellants' argument that the action of the judge at the first trial of No. 13261-70 in vacating the judgment some sixteen months after it had been entered was improper. Appellants claim that the motion to vacate was appropriate only under Super.Ct.Civ.R. 60(b) (1), not 60(b)(6),⁶ since appellee's motion to vacate the judgment was based on his mistaken or inadvertent participation the trial of No. 13261-70. Appellants contend that this misapprehension is not the sort of extraordinary or unusual occurrence for which relief is appropriate under Rule 60(b)(6), and consequently they argue the vacation must have been granted pursuant to Rule 60(b) (1). The trial court lacks jurisdiction to entertain such a motion after one year from entry of the judgment, however, and therefore appellant's urge that the order vacating the judgment be reversed and the original judgment reinstated. Smith v. Reese, D. C.App., 221 A.2d 439 (1966).

The provision of Rule 60(b) (6) allowing a court to vacate a judgment upon motion made within a reasonable time creates "a method for granting relief beyond the time limitation in unusual and extraordinary situations justifying an exception to the overriding policy of finality." Railway Express Agency, Inc. v. Hill, D. C.App., 250 A.2d 923, 925 (1969), citing J. Moore, Federal Practice § 60.27 (2d ed. 1966). The decision to grant or deny a motion under Rule 60(b) (6) is committed to the sound discretion of the trial court judge. Jones v. Hunt, D.C.App., 298 A.2d 220, 221 (1972); Tribble v. American Mutual Ins. Co., D.C.App., 277 A.2d 659, 661 (1971). Since courts generally favor a trial on the merits, the decision of a trial court to vacate a judgment and award a new trial should not be reversed absent a clear abuse of discretion. See Citizens Building & Loan Ass'n v. Shepard, D.C. App., 289 A.2d 620, 623 (1972); cf. Jones v. Hunt, supra, at 221.

The circumstances of this case are so unusual that we cannot conclude the trial court abused its discretion in granting appellee's motion to vacate pursuant to Rule 60(b) (6) rather than 60(b) (1). It was reasonable for the trial court to believe that appellee did not know he was a party to the suit for property damages, particularly since he never authorized Hamilton to sue on his behalf.⁷ This situation did not clearly fall within the parameters of "mistake, inadvertence, surprise, or excusable neglect," yet it is a situation that, in the interests of justice, clearly deserved relief. Furthermore, appellee acted with all due diligence in instituting his suit for personal injuries, since he filed his complaint well within the three-year statute of limitations, D.C.Code 1973, § 12-301. Hence the trial court's decision to grant relief under Rule 60(b) (6) and allow a determination of appellee's personal injury claim on its merits was not a clear abuse of discretion. See Citizens Building & Loan Ass'n v. Shepard, supra.

II.

Turning to the second part of appellants' appeal, the facts are as follows. Appellee called Mr. Steven F. Stubits, a District of Columbia Highway Department Engineer, to testify as an expert witness at the trial on March 11, 1974. Stubits was found to be qualified as an expert in the area of highway design,⁸ and he testified as to the design of the freeway ramp on which the accident occurred. He also testified as to visibility, sight distances on the ramp, and braking distances, based on his expert knowledge as well as his personal observations the week before trial. Stubits' calculations all were made on the basis of an automobile rather than a truck, but on cross-examination he admitted that he did not know if stopping distances were the same for a truck as for an automobile.

Appellants now urge upon us three grounds of error. First, appellants argue that expert testimony was unnecessary in the area of sighting distances, braking distances, and visibility, and that by admitting such testimony the trial court allowed the expert to usurp the factfinding function of the jury. Second, appellants claim that the court erred in allowing the expert to testify based on his personal observation of the scene of the accident. Third, appellants urge that it was improper to permit the expert to testify as to stopping distances of a car when a truck was involved in the accident. Having concluded that these arguments are without merit, we affirm the trial court's rulings.

The decision whether or not to admit expert testimony lies within the sound discretion of the trial court, and its ruling should be sustained unless "manifestly erroneous." Congress & Empire Spring Co. v. Edgar, 99 U.S. 645, 658, 25 L.Ed. 487 (1879); Harvey's, Inc. v. A. C. Electric Co., D.C.App., 207 A.2d 660 (1965); see Salem v. United States Lines, 370 U.S. 31, 35, 82 S.Ct. 1119, 8 L.Ed.2d 313 (1962); Pollard v. Hawfield, 83 U.S.App.D.C. 374, 170 F.2d 170 (1948), cert. denied, 336 U.S. 909, 69 S.Ct. 514, 93 L.Ed. 1073 (1949); Washington Ry. & Elec. Co. v. Clark, 46 App.D.C. 88, cert. denied, 243 U.S. 649, 37 S.Ct. 476, 61 L.Ed. 946 (1917). This court described the test used by trial courts in determining whether expert testimony is appropriate in our decision in Waggaman v. Forstmann, D.C.App., 217 A.2d 310, 311 (1966):

It is well settled in this jurisdiction that to warrant the use of expert testimony the subject dealt with must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman and the witness must have such skill, knowledge or experience in that field or calling that his opinion will probably aid the trier in his search for truth.

See also Jenkins v. United States, 113 U. S.App.D.C. 300, 307 F.2d 637 (1962); C. McCormick, Evidence § 13 (2d ed. 1972).

The courts in this jurisdiction have upheld the admission of expert testimony on a variety of subjects similar to those at issue here. For example, in Engle v. Stull, 126 U.S.App.D.C. 291, 377 F.2d 930 (1967),...