Perry v. Ernest R. Hamilton Associates, Inc.
| Decision Date | 22 September 1972 |
| Citation | 485 S.W.2d 505 |
| Parties | Bernard T. PERRY, Appellant, v. ERNEST R. HAMILTON ASSOCIATES, INC., Appellee. ERNEST R. HAMILTON ASSOCIATES, INC., Cross-Appellant, v. Bernard T. PERRY, Cross-Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
J. H. Highfield, Louisville, Vance M. Waggoner, Rushville, Ind., for appellant and cross-appellee.
Kenneth S. Handmaker, Handmaker, Weber & Meyer, Louisville, Murray J. Feiwell, Indianapolis, Ind., for appellee and cross-appellant.
CATINNA, Commissioner.
Ernest R. Hamilton Associates, Inc., filed this action in the Jefferson Circuit Court, Common Pleas Branch, Fifth Division, against Bernard T. Perry, seeking a recovery of $5,432.98 due on an account for services rendered, together with interest from April 2, 1964. Upon a trial the court, at the conclusion of the evidence, directed the jury to return a verdict for Hamilton Associates, Inc., for the entire amount claimed but allowed interest from the date of judgment (November 19, 1969) only.
Perry appeals and Hamilton Associates, Inc., cross-appeals as to that interest award. The judgment is affirmed upon the appeal and reversed on the cross-appeal.
Hamilton Associates was an engineering firm with experience in the preparation and design of subdivision plats and layouts. Perry was a certified public accountant and financial consultant. In 1963 Perry contacted Hamilton Associates and requested a layout for a proposed subdivision near Crawfordsville, Indiana, designated by him as Arrowhead Hills. Hamilton Associates performed the services requested with all progress reports and a final report being made to Perry. During the time the work was in progress, conferences were held with Perry and as the maps, profiles, and materials were completed they were all submitted to Perry. At no time during the course of Hamilton Associates' work did Perry ever complain about the quality of the work or raise any objection concerning the services being performed at his request. Hamilton Associates, after completion of the work requested of them by Perry, forwarded to him under date of April 2, 1964, an invoice for services rendered in the amount of $5,432.98. Although Perry admitted receiving this invoice and additional invoices, he raised no question concerning the reasonableness of the charges shown by the invoices--he just didn't pay the account.
Hamilton Associates then filed this action in an effort to enforce payment of the account. Perry's answer was a general denial. Upon a trial of the case Perry did not appear. A discovery deposition of Perry taken by Hamilton Associates was read to the jury by counsel for Perry.
Perry presents three claims of error, asserting that (1) the court prejudiced his rights before the jury by (a) its colloquy with counsel for appellant in front of the jury; (b) comments to counsel for the appellee as to how to ask questions before the jury; (c) comments regarding the case before the jury; (2) the court erred in its refusal to allow counsel for the appellant to pursue the right to cross-examination in areas wherein the appellee had offered evidence; and (3) the court erred in directing a verdict for the appellee at the close of all the evidence where all the evidence showed that there was a question to be submitted to the jury regarding whether or not the appellee was performing services for a corporation or an individual.
As there was a peremptory instruction directing the jury to return a verdict in favor of Hamilton Associates, we are confronted with the question of whether, under these circumstances, the remarks and comments of the court made in the presence of the jury constituted error that so prejudiced Perry's case before the jury that the judgment should be reversed.
Seldom is the court confronted with this particular question where the trial court has directed a verdict. However, it has been considered as passed on in numerous cases where this court was of the opinion that the trial court should have directed a verdict.
In Lilly v. Marcum, 214 Ky. 514, 283 S.W. 1059 (1926) the rule was stated as follows:
'* * * As the case is one where the trial court might with propriety have directed a verdict in favor of appellee, appellants were not prejudiced by any errors in the instructions or the admission or rejection of evidence.'
In holding that the trial court would not have erred had it sustained defendant's motion for a directed verdict, we said:
'* * * Such being the case, it is not necessary to consider the errors relied upon by plaintiffs for reversal, as in no event could plaintiffs have been prejudiced if such errors were committed, since defendant was entitled to a peremptory instruction.' West v. Whitley Lodge No. 148 of Knights of Pythias of Corbin, 296 Ky. 671, 178 S.W.2d 203 (1944).
In Redding v. Independent Contracting Company, Ky., 333 S.W.2d 269 (1960), there was a verdict for the defendant. On appeal grounds for reversal were (1) the instructions were erroneous; and (2) prejudicial evidence was admitted over objection. This court being of the opinion that the defendant-appellee's motion for a directed verdict should have been sustained said:
'We have often held that where a defendant is entitled to a directed verdict, errors committed in the instructions or similar matters were not prejudicial to plaintiff.'
Thus, Perry in no event could have been prejudiced by the remarks and comments made by the trial judge in the presence of the jury, as there was a directed verdict in favor of Hamilton Associates.
The trial court committed no error in limiting the scope of appellant's cross-examination. This court has consistently held that the trial court is vested with a sound judicial discretion as to the scope and duration of cross-examination. Commonwealth, Dept. of Highways v. Smith, Ky., 390 S.W.2d 194 (1965). We find no abuse of discretion in this case. In no event was appellant prejudiced by the court's refusal to admit the evidence on cross-examination. Lilly v. Marcum, 214 Ky. 514, 283 S.W. 1059 (1926).
Appellant claims error in the directing of a verdict, as the question of whether Hamilton Associates was employed by Arrowhead Hills, Inc., a corporation, or Bernard T. Perry, an individual, was before the court and should have been submitted to the jury.
Although the Arrowhead Hills Subdivision was owned by the corporation, the record clearly establishes that this fact was now known to Hamilton Associates. Ernest R. Hamilton testified...
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