Ordinetz v. Springfield Family Center, Inc., 508-81

• Decision Date: 07 February 1983
• Docket Number: No. 508-81,508-81
• Citation: 142 Vt. 466,457 A.2d 282
• Court: Vermont Supreme Court
• Parties: Juanita ORDINETZ and Walter Ordinetz v. SPRINGFIELD FAMILY CENTER, INC.

Page 282

457 A.2d 282

142 Vt. 466

Juanita ORDINETZ and Walter Ordinetz v. SPRINGFIELD FAMILY CENTER, INC.

No. 508-81.

Supreme Court of Vermont.

Feb. 7, 1983.

Kiel & Boylan, Springfield, for plaintiffs-appellants.

Leo A. Bisson, Jr., of Downs, Rachlin & Martin, St. Johnsbury, for defendant-appellee.

Before BILLINGS, HILL, UNDERWOOD and PECK, JJ., and LARROW, J. (Ret.), Specially Assigned.

ROBERT W. LARROW, Justice (Ret.), Specially Assigned.

Plaintiff Juanita Ordinetz was severely injured in defendant's Family Center Thrift Store in 1979, when she fell over a child who ran in front of her. She and her husband Walter Ordinetz sued the defendant, claiming negligence in failure to exercise proper control over the child, one of two accompanying another customer, and failure to warn of the children's activities. From a jury verdict and judgment in favor of the defendant, the plaintiffs appeal. They assign as errors (1) permitting voir dire references to defendant's nonprofit status and charitable activities, (2) refusal to permit their cross-examination and impeachment of the testimony of one Carla Berry, a witness called by them, and (3) erroneous jury instructions in a supplemental charge. We consider those claims in that order.

As factual background, the defendant corporation is in fact a nonprofit entity. It either sponsors or engages in a number of charitable enterprises, of which the store here in question was one. Carla Berry was the manager on duty at the time of the accident, and was the sole employee of the defendant then present. Several adult customers other than the plaintiff Juanita Ordinetz were present, and at least two young children. Ms. Berry, at the time of trial, was no longer employed by the defendant, but there is no claim that her termination was caused either by the incident in question or the ensuing litigation. Her testimony assumed added importance because the parties were unable to discover the names of other customers.

Plaintiffs' first claim of error is based upon the trial court's denial of a motion for mistrial, made during the voir dire. A review of the transcript casts considerable doubt upon whether such a motion was in fact made. At the bench, plaintiffs' counsel stated that he was "planning on asking" for a mistrial because of statements by defendant's attorney that defendant was a nonprofit corporation. In our view, this is somewhat short of an actual motion. But the trial court evidently treated it as such, because it denied it. We will, therefore, treat it as a motion properly made and duly denied.

The argument that the remark was improper seems to be based upon the assumption that the term "nonprofit" implies poverty, or inability to satisfy a judgment. Such is not the case; a nonprofit corporation may be large or small, wealthy or impoverished, just as a private corporation. The asserted inference simply is not present. Moreover, counsel's motion was only made when the court, at the bench, was limiting another line of inquiry. No objection was made when the nonprofit point was mentioned, and the "motion" was at a considerably later time. Defendant's charitable activities, moreover, necessarily brought it into direct contact with a number of area residents, and inquiry into the nature and extent of those contacts would appear to have been appropriate. We are pointed to nothing in the record, and we have discovered nothing, indicating that any further emphasis was placed upon the point. Even were we to hold the line of inquiry to be inappropriate, which we do not, we would not be constrained to hold that the trial court in any respect abused its admitted discretion. Parker v. Hoefer, 118 Vt. 1, 5, 100 A.2d 434, 438 (1953). Basing reversal upon the record before us, on this point, would be a perversion of V.R.C.P. 61, precluding reversal unless a ruling is "inconsistent with substantial justice." This is even more apparent when viewed in the light of plaintiffs' failure to challenge two jurors who admitted knowledge of (and in one instance, donation to) defendant's charitable activities. The first claim of error is without merit.

Plaintiffs' second assignment of error has to do with their examination of Ms. Berry. As previously noted, Ms. Berry was manager of defendant's store at the time of the accident, and the only employee present. Her deposition was taken by the plaintiffs prior to trial. At time of trial, she was no longer defendant's employee. In a pretrial ruling, to which it later adhered, the trial court ruled that the plaintiffs could not use leading questions to interrogate Ms. Berry, or impeach her through prior contradictory statements, because she was no longer defendant's employee within the meaning of V.R.C.P. 43(b), subject to approving such procedure during trial upon a showing of actual hostility. Such actual hostility does not appear to be seriously claimed, and a review of the record shows none that would require such a finding by the trial court in the exercise of its discretion.

This ruling is claimed to be erroneous in light of the provisions of V.R.C.P. 32(a)(1), permitting any party to use a deposition to contradict or impeach the testimony of the deponent as a witness. But that permission is limited by the language preceding it, in the body of V.R.C.P. 32(a), restricting such use by the limitation "so far as admissible...