Palmisano v. Townsend, s. 152-76

• Decision Date: 11 September 1978
• Docket Number: 153-76,Nos. 152-76,s. 152-76
• Citation: 392 A.2d 393,136 Vt. 372
• Parties: Joseph C. PALMISANO, Trustee of Richard H. and Monique B. Bousquet v. Rudolph M. TOWNSEND and Richard M. Wheeler. Cecile G. OLSON v. Rudolph M. TOWNSEND and Richard M. Wheeler.
• Court: Vermont Supreme Court

Page 393

392 A.2d 393

136 Vt. 372

Joseph C. PALMISANO, Trustee of Richard H. and Monique B. Bousquet v. Rudolph M. TOWNSEND and Richard M. Wheeler.

Cecile G. OLSON v. Rudolph M. TOWNSEND and Richard M. Wheeler.

Nos. 152-76, 153-76.

Supreme Court of Vermont.

Sept. 11, 1978.

Richard E. Davis of Richard E. Davis Associates, Inc., Barre, for palmisano.

Bernasconi & Koch, Barre, for Olson.

John K. Dunleavy of Burgess & Normand, Ltd., Montpelier, for defendant Townsend.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

HILL, Justice.

These two appeals from the Washington Superior Court involve two civil actions that were tried together below. In both actions the plaintiffs, who purchased adjoining properties through Rudolph Townsend, a real estate broker and registered land surveyor, alleged that Townsend and Richard Wheeler, a licensed professional engineer, were negligent in assembling the data needed to support a subdivision permit application and in designing a septic disposal system. After trial, judgments were entered in accordance with the jury's verdicts, which awarded damages against both defendants in each case. Only defendant Townsend appeals.

Appellant's first claim of error on appeal involves the trial court's charge to the jury. Appellant asserts that the court erred in failing to tender an adequate instruction as to comparative negligence. He argues this despite his failure to raise the issue in his pleadings (V.R.C.P. 8(c)), in his requests to charge, or in his objections to the court's charge (V.R.C.P. 51(b)). Codefendant Wheeler did raise the issue of comparative negligence in his pleadings but did not object to the court's charge on the matter. Comparative negligence is an affirmative defense which must be pleaded under V.R.C.P. 8(c). See Reporter's Notes, V.R.C.P. 8(c). Since appellant did not plead in either action that plaintiff's negligence contributed to the injury, the defense was not available to him on trial and could not therefore, be available to him on appeal, absent a trial of the issue by the express or implied consent of the parties under V.R.C.P. 15(b). Frigon v. Whipple, 134 Vt. 376, 378, 360 A.2d 69, 70 (1976). Although the issue was necessarily infused into the trial by co-defendant Wheeler's averments of negligence on the part of the plaintiffs, we cannot hold on the record before us that the plaintiffs impliedly consented to try this issue Vis a vis the appellant.

Furthermore, even assuming the plaintiffs consented, in some fashion, to try the issue, appellant failed to inform the court that he was dissatisfied with the court's charge, as is required by V.R.C.P. 51(b). Paton v. Sawyer, 134 Vt. 598, 602-03, 370 A.2d 215, 218 (1976). Appellant attempts to circumvent the requirements of Rule 51 by arguing that under the circumstances of the case "such an objection would have been a mere tautological exercise devoid of purpose" since "(t)he objection had already been made by plaintiff Palmisano's counsel, thus fulfilling the purpose of the rule that the trial judge should be (made) aware of the errors or omission in his instructions while time remains to deliver a corrective supplement." Appellant asks us, at least impliedly, to hold that an opposing party's objection to the court's charge may serve to prevent a waiver by other parties to the litigation who fail to make the objection required by Rule 51(b). We need not decide this issue because we do not agree with appellant's underlying assumption that the plaintiff had already made an objection fulfilling the dictates of V.R.C.P. 51(b). The objection to the trial court's charge must, of course, relate to the claim of error...