Puccio v. Diamond Hill Ski Area, Inc.

• Decision Date: 11 April 1978
• Docket Number: No. 76-344-A,76-344-A
• Citation: 120 R.I. 28,385 A.2d 650
• Parties: David PUCCIO v. DIAMOND HILL SKI AREA, INC. ppeal.
• Court: Rhode Island Supreme Court

Page 650

385 A.2d 650

120 R.I. 28

David PUCCIO v. DIAMOND HILL SKI AREA, INC.

No. 76-344-Appeal.

Supreme Court of Rhode Island.

April 11, 1978.

[120 R.I. 42] Swan, Jenckes, Asquith & Davis, Harry W. Asquith, Conrad M. Cutcliffe, Providence, for plaintiff.

James M. Shannahan, Joseph H. Parys, Providence, for defendant.

OPINION

KELLEHER, Justice.

This is a negligence action in which the plaintiff seeks damages for injuries he sustained in October 1966 as a result of a fall down a flight of stairs in premises owned by the defendant corporation. Nine years later, in February 1976, a Superior Court jury returned a verdict for the defendant. ¹ The trial justice denied the plaintiff's motion for a new trial, and the plaintiff is before us on an appeal in which he takes issue with three rulings made by the trial justice. Two of the rulings relate to evidentiary matters, while the third concerns the denial of the plaintiff's motion for a new trial. Hereinafter we shall refer to the plaintiff by his last name.

On the morning of October 24, 1966, Puccio went to the Diamond Hill Ski Area to deliver display racks for his employer, Peggy Lawton Kitchens. The building where Puccio was to make his delivery was a one-story, multi-purpose facility containing a snack bar, a dairy bar, and ski shop. The ski season was about to open, and the racks were needed to display sundry food products in the ski area's snack bar. Upon entering the snack bar portion of the building, Puccio met Albert Carrier. Carrier worked in the snack bar as a combination janitor-counterman and was the only other person present on defendant's premises on this particular day. According to Puccio, he introduced himself to Carrier and explained the purpose of his visit. Carrier, thinking that Puccio was a salesman, informed the visitor that Raymond W. Costigan, the owner, was not there and that he had no authority to make purchases. Puccio testified that, once he clarified the purpose of his visit, he was told that he could put the display racks on a shelf that was behind the snack bar's serving counter. He then attempted to climb over the counter but was stopped by Carrier, who informed him that he would have to approach the "back bar" from the kitchen and pointed out the route that Puccio should take in order to reach his destination.

Puccio testified that to get to the kitchen, he walked from the snack bar area through an archway and into the ski shop. He circled a display case and then opened the first door on his right. At this point Puccio was looking into what he described as a small, dark hallway. Five or six feet in front of him, he claimed, he observed light shining from beneath what he thought was a door. He took one or two steps and suddenly fell down a flight of stairs, knocking himself unconscious. When he revived, he was lying on the cellar floor.

Carrier's account of what transpired once he informed Puccio that he had no authority to make purchases differed completely from what Puccio had described to the jury. Carrier testified that Puccio asked him if there were any display racks left over from the previous season. Carrier replied that there were, but they were in the cellar. The janitor-counterman then informed Puccio that no one could go into the cellar without the owner being present because valuable ski equipment was stored there. Carrier testified that he returned to his chores. Shortly thereafter, he said, he heard a noise from the cellar. He went over to the top of the cellar stairs, turned on the light, and saw Puccio at the bottom of the stairway.

Other defense witnesses pointed out that if all Puccio wanted was the chance to place the new racks on the back bar, there was absolutely no necessity for him to proceed through the ski shop. A portion of the snack bar was reserved for the clientele who preferred table, rather than counter service. There was a space between one end of the serving counter and the back bar so that those who served the table customers could go behind the counter, pick up their orders, and return to the table area.

Puccio's first claim of error is the trial justice's refusal to permit him to examine Carrier under G.L.1956 (1969 Reenactment) § 9-17-14, the adverse witness statute. At trial, after he testified about his plunge down the stairway and his injuries, Puccio called Carrier to the stand. He told the trial justice that he was doing so under § 9-17-14. The trial justice excused the jury while he heard arguments as to the applicability of the statute. Ultimately, the trial justice ruled that Carrier did not come within the reach of the adverse witness statute.

Puccio's insistence that he be allowed to call Carrier and question him as if on cross-examination arose from the fact that at the time of trial he possessed an October 3, 1974 deposition by Carrier in which the janitor made numerous references to a "trap door" as being the cause of Puccio's fall. ² Apparently, Puccio was dubious about whether the defense would have Carrier testify in its behalf so that this evidence would go before the jury. Consequently, he took the initiative and called Carrier to the stand. However, in the absence of a statute or judicially created exception, a party who calls a witness vouches for his credibility and cannot cross-examine him with full opportunity for impeachment. State v. Robertson 102 R.I. 623, 232 A.2d 781 (1967); Manocchio v. Pettine, 84 R.I. 167, 122 A.2d 152 (1956); Souza v. United Electric Rys., 51 R.I. 124, 152 A. 419 (1930); Wigmore, Evidence § 896 (3d ed. 1940). Thus, if Carrier testified that the entrance to the cellar was a regular flush door, as defendant maintained, Puccio would not be able to bring to the jurors' attention that Carrier had previously stated that there was a "trap door." In Rhode Island we have both a statute and rule of civil procedure which permit a party, in appropriate circumstances, to cross-examine his own witness. ³

The pertinent court rule is Super.R.Civ.P. 43(b), which provides for two categories of witnesses who may be cross-examined by the calling party an adverse party and, if the adverse party is a corporation, partnership, or association, an officer, director, or managing agent of such an entity. ⁴ A third classification is to be found in § 9-17-14. This section states that "any other person whose interest is adverse to the party calling him, may be examined as if under cross-examination." ⁵

The specific grounds upon which Puccio was relying in calling Carrier to the witness stand are unclear from the record. At one point he told the trial justice that he was proceeding in this manner because Carrier seemed to have an "extreme personal and paramount interest." A little later Puccio stated that Carrier was "an agent of the party, and as such has authorization to act for the party." The trial justice found that neither Rule 43(b) nor § 9-17-14 supported Puccio's claim of entitlement to employ cross-examination techniques in questioning Carrier. He stated: "I will not permit you solely on the basis that he was an employee * * * he not being a party to the litigation * * * I don't believe he has an interest in this litigation * * *." Before us Puccio argues that he should have been allowed to cross-examine Carrier for any of the reasons delineated in Rule 43(b) and § 9-17-14.

We think it clear that Carrier was not a managing agent of his employer, Diamond Hill Ski Area, Inc. A managing agent has been defined as a person who is more than a mere employee but is one who "acts with supervisory authority, being invested with general powers to exercise his discretion and judgment in dealing with corporate matters and his interests are identified with those of the corporation." Heater v. Chesapeake & Ohio Ry., 497 F.2d 1243, 1248 (7th Cir. 1974). The trial justice is to look at the facts of each case and base his decision on such factors as the person's authority to control the conduct of other employees, the type of duties he performs and whether they distinguish him from other workers, his specialized training, and the extent of his responsibilities in the day-to-day operation of the corporation or a particular department over which he has authority. Skogen v. Dow Chemical Co., 375 F.2d 692 (8th Cir. 1967); Brandon v. Art Centre Hospital, 366 F.2d 369 (6th Cir. 1966). It is difficult to see how Carrier, a combination janitor-counterman who, it is conceded, could not even give an order to Puccio for some cookies from Peggy Lawton Kitchens, can now be said to act with supervisory authority over corporate matters.

We need not, however, decide whether the trial justice was correct in holding that Carrier was neither an adverse party ⁶ nor a person whose interest is adverse to the party calling him. We shall assume that the trial justice erred when he refused to allow Puccio to cross-examine Carrier, ⁷ but such error was, in our opinion, harmless. When defendant presented its case, Carrier appeared as a witness. Puccio was then given, and took full opportunity of, his right to cross-examine the witness. For 30 pages of transcript and 194 questions, Puccio questioned Carrier in great detail about the events surrounding the fall. The jury had before it four different hand-drawn sketches of the area near the snack bar and ski shop. Three of the four were prepared by counsel for the litigants at the time of the taking of Carrier's October 1974 deposition. The fourth one had been prepared a month earlier by an individual whose occupation at this time is unknown. All four sketches were made in Carrier's presence and with his suggestion and advice. All four show a trap door. The three used at the deposition show the trap door at the head of the cellar stairs. Consequently, the jury was well aware that a little over a year prior to trial Carrier had testified under oath as to the presence of a trap door near the area where Puccio was injured. It is our belief...