Pescatore v. MacIntosh, 73-56-A

• Decision Date: 01 May 1974
• Docket Number: No. 73-56-A,73-56-A
• Parties: Maria PESCATORE et al. v. William D. MacINTOSH et al. ppeal.
• Court: Rhode Island Supreme Court

Page 21

319 A.2d 21

113 R.I. 139

Maria PESCATORE et al. v. William D. MacINTOSH et al.

No. 73-56-Appeal.

Supreme Court of Rhode Island.

May 1, 1974.

John F. Cuzzone, Jr., Matthew F. Callaghan, Jr., Providence, for plaintiffs

Higgins, Cavanagh & Cooney, Kenneth P. Borden, Providence, for defendants.

OPINION

JOSLIN, Justice.

Maria Pescatore brought this civil action to recover damages for personal injuries sustained while riding as a passenger in an automobile owned by the defendant, William D. MacIntosh, and operated with his permission by his son, Greg, also a defendant. Maria was single and a minor when the suit was commenced, but married and attained her majority prior to the trial. She is now known as Maria Malak. Her mother, Lucy Grieco, is also a plaintiff and she seeks consequential damages. The case was tried before a judge and jury in the Superior Court. Prior to its submission to the jury, the parties agreed that if the award were for the plaintiffs it should be reported in a single sum. The jury found for the plaintiffs in the amount of $22,000, and judgments for that amount plus interest and costs were entered. The case is here on the defendants' appeal.

The litigation arises out of an automobile accident which occurred shortly before 2 a.m. on the morning of October 13, 1967, when the MacIntosh vehicle swerved from the highway and collided with a telephone pole on the northeast side of Oaklawn Avenue in Cranston, approximately 150 feet north of where it intersects Dean Parkway. Maria was a passenger in the front seat of the automobile at the time of the accident, and sustained serious injuries including facial lacerations, a possible fractured jaw and the loss of five teeth.

Just how the accident happened or what caused it is uncertain. Maria was unable to relate anything about the attendant circumstances because she was asleep when the accident occurred. That left Greg as the only known eyewitness. He stated at the trial that he was proceeding slowly and that as he made a right-hand turn onto Oaklawn Avenue from Dean Parkway, an overtaking vehicle forced him off the road and caused him to hit the telephone pole. Two police officers who arrived on the scene soon after the incident also testified. One said that upon arrival he found Greg 'in a very semi-unconscious state,' 'seriously injured' and unable to 'relate as to how the accident occurred.' The other testified that he had a brief conversation with Greg just before the latter became unconscious, and he quoted Greg as saying that he lost control of his own vehicle and then hit the pole. He further testified that Greg said nothing about being forced off the road by another vehicle.

Before us, defendants assign as errors the trial justice's overruling of their objection to the admission of evidence, his refusal to grant their motion to pass the case, his denial of their motions for a directed verdict and for a new trial, and his rulings with respect to plaintiffs' entitlement to damages.

THE EVIDENTIARY RULING

At the commencement of direct examination, Maria identified herself and furnished some general background information. She was then permitted to testify, over objection, that the accident occurred as she and Greg were returning to their homes from a restaurant in Warwick known as the Bank Cafe.

The defendants argue that this testimony should have been rejected on the basis of Handy v. Geary, 105 R.I. 419, 427-431, 252 A.2d 435, 440-442 (1969), where we held that it was error to admit evidence of the mere fact that an operator of a motor vehicle had been drinking intoxicating liquor, unless it reasonably establishes his intoxication to a degree indicative of unfitness to drive. We adopted that rule in Handy because in our judgment the prejudicial effect of that kind of evidence outweighs its probative value. See McCormick, Evidence § 185 at 438-41 (2d ed. 1972); 6 Wigmore, Evidence § 1904 at 574 (3d ed. 1940).

The question in this case, however, is not whether to apply the Handy rule, but whether to enlarge it to ban not only evidence The defendants urge upon us the Pennsylvania enlargement, but whether we should extend Handy that far is a question which, on the facts of this case, we need not decide. A comparison between the facts here and those in the Pennsylvania cases makes that clear. Testimony that Greg was at the Bank Cafe prior to the accident obviously is not susceptible of the same kind of inference as in Cook v. Philadelphia Transp. Co., supra, where the litigant had been at a nocturnal drinking establishment with the 'image-creating sobriquet of the 'Crazy Bar"; and while '* * * one might almost automatically form a recklessly exaggerated notion of the inebriating proclivities of a place called the 'Crazy Bar," Cook v. Philadelphia Transp. Co., supra at 159-160, 199 A.2d at 448, the same connotation no more attaches to a restaurant known as the Bank Cafe than it would to a hotel or a friend's home,

that an operator had a drink of intoxicating liquor, but also evidence that he was at a place where he might have had such a drink. The Pennsylvania court sees no 'functional difference' between the two and holds that either one '* * * give(s) rise to the insidious inference that the individual involved was intoxicated or under the influence of alcohol * * *.' Morreale v. Prince, 436 Pa. 51, 53, 258 A.2d 508, 508-509 (1969). Accord, Miles v. Ryan, 484 F.2d 1255 (3d Cir.1973); Sentz v. Dixon, 224 Pa.Super. 70, 302 A.2d 434 (1973); see also Cook v. Philadelphia Transp. Co., 414 Pa. 154, 199 A.2d 446 (1964).

THE MOTION TO PASS

The defendants also argue that their counsel was so disparaged by the trial justice that it became impossible for them to have a fair and impartial trial. The colloquy ¹ between the trial justice and It may well be that a mild rebuke was in order ² for what was at best an argumentative question and at worst a misstatement of the applicable law. ³ Some more moderate phrase than 'highly improper' probably would have sufficed and might even have avoided the ensuing short-lived verbal duel about whether counsel had asked a question or made a comment. But while it appears that counsel throughout was courteous and respectful, his insistence may have provoked the trial justice once again to characterize what had been said as 'improper.' Perhaps, too, the trial justice's alacrity in denying what he reasonably assumed was a motion to pass, even before it had been so identified, may be attributed to his desire to end the verbal stalemate and get on with the case.

                counsel containing that alleged disparagement commenced when defendants' counsel said to a witness, 'And when he has the green light he has no reason to look to the left?'   Objection was immediately interposed, and defendants' counsel promptly withdrew what he had said.  At that point, the trial justice instructed the jury to disregard what he referred to as a 'comment,' and characterized it as 'improper' and 'highly improper.'
                

In any event, the trial proceeded to a conclusion without any further difficulties of this nature. While defense counsel's sensitivities may have been bruised during the exchange, not every unguarded remark by a trial justice in the presence of a jury which indicates his displeasure with counsel's action is a ground for reversal. Roy v. United Electric Rys., 52 R.I. 173, 180, 159 A. 637, 640 (1932). In our judgment what occurred here was nothing more than a tempest in a teapot; we are not prepared to say that what the trial justice said probably created an atmosphere so charged with personal feelings that it became well-nigh impossible for the jury to weight the evidence fairly and impartially. Accordingly, it was not error for the trial justice to refuse to pass the case. ⁴ State v. Kieon, 93 R.I. 290, 298, 175 A.2d 284, 289 (1961); see Roy v. United Electric Rys., supra; Schafer v. Thurston Mfg. Co., 48 R.I. 244, 247, 137 A. 2, 4 (1927).

THE DIRECTED VERDICT AND THE MOTION FOR A NEW TRIAL

In passing on a defendant's motion for a directed verdict, a trial justice must view the evidence and the reasonable inferences therefrom in the light most favorable to the plaintiff and without regard to its weight or the credibility of the witnesses, and he should not direct a verdict unless the only reasonable conclusion on the evidence so viewed is that the plaintiff is not entitled to recover. Cutroneo v. F. W. Woolworth Co., R.I., 315 A.2d 56, 57 (1974); Molinari v. Sinclair Refining Co., 111 R.I. 490, 494, 304 A.2d 651, 654 (1973).

In this case, as we have already indicated, one of the investigating police officers quoted Greg as saying that his automobile swerved from the road and hit the telephone pole, not by reason of a car cutting in ahead of him, but because he lost control of the vehicle. The defendants seek to belittle both the probative value and the inferential potential of that testimony. But it seems to us that when considered in the required light, that testimony standing alone was more than sufficient to warrant a finding of negligence. Its sufficiency to get the case to the jury is considerably enhanced, moreover, by evidence that (1) the police searched for and were unable to locate the eyeglasses Greg was required to wear while operating an automobile; (2) there were no skid marks on the highway at the point where Greg said he had been forced off the road; and (3) the front end of the MacIntosh vehicle was severely damaged. It was, therefore, not error for the trial justice to refuse to direct a verdict in defendants' favor. Redding v. Picard Motor Sales, Inc., 102 R.I. 239, 248, 229 A.2d 762, 768 (1967); see State v. Ingman, 104 R.I. 635, 247 A.2d 858 (1968).

With respect to the related ruling denying their motion for a new trial, defendants do not contend that the trial justice failed to perform the obligation imposed upon him by Barbato v. Epstein, 97 R.I. 191, 196 A.2d 836 (1964). Instead, they...