Russell v. Pilger, 76.

Decision Date02 May 1944
Docket NumberNo. 76.,76.
CourtVermont Supreme Court
PartiesRUSSELL v. PILGER et al

OPINION TEXT STARTS HERE

COPYRIGHT MATERIAL OMITTED.

Exceptions from Addison County Court; Stephen S. Cushing, Presiding Judge.

Action by Helen O. Russell, administratrix of the estate of Ray Russell, deceased, against Martin Pilger and others, to recover damages for death of plaintiff's decedent, which was allegedly caused by combination of negligence on the part of defendant Sanford Derrick in operation of a truck and an assault and battery on the decedent by the other defendants. Verdict for all of the defendants, and plaintiff brings exceptions.

Reversed and remanded.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

William S. Burrage, of Montpelier, for plaintiff.

Lawrence & O'Brien, of Rutland, A. Pearley Feen, of Burlington, and Wayne C. Bosworth, of Middlebury, for defendants.

JEFFORDS, Justice.

In the early part of July, 1941, a so-called milk strike was taking place in Addison County. Two of the milk producers called upon the sheriff of the county for protection in getting their milk to the plants in Vergennes to which it was to be taken. As a result of this appeal the sheriff ordered Ray Russell, a deputy sheriff, to give the requested protection. On the morning of July 3rd Russell with one of the producers went to the home of Sanford Derrick, one of the defendants in this case, who was the owner of a truck which was being used at the time for hauling milk to the plants. Russell was wearing his badge at the time. He was introduced to Derrick as a deputy sheriff and Derrick was told by Russell that he was there to accompany Derrick in the latter's truck that morning. Derrick was aware of the milk strike and that as a result of it some milk had been stopped from getting to the plants. He was also aware of the fact that there might be some trouble getting to the plants that morning with the milk and he knew that Russell was there to protect the milk.

The truck left Derrick's home with Derrick, Russell and three other men in it. Milk in cans was picked up along the way and when the truck had received its full load Derrick took over the driving with Russell sitting on the seat with him. At a point near Vergennes the road was blocked by a parked truck. William Sullivan, one of the defendants, who was near this truck stepped out on the highway and flagged the Derrick truck which came to a stop. In addition to Sullivan there were 15 or 20 people gathered around the parked truck. Russell got out of the Derrick truck and after a few questions ordered the other truck moved. This was done and the Derrick truck started on its way. Soon after it started the defendants Martin Pilger, George and William Sullivan and Donald O'Donnell climbed over the tail board and on the truck. A scuffle took place between some of them and the two men who had been riding in the rear of the truck and some of the defendants threw milk cans from the truck. A milk producer who had not been riding in the truck got on it and joined in the scuffle.

Russell apparently got on the running board of the truck when it started, or soon after, and was on it while part at least of this mêlée was taking place. During the time the truck was in motion he fell from it for a cause which is here in dispute. He received injuries which soon resulted in death.

The plaintiff brought this suit for damages claiming that the death was caused by a combination of negligence on the part of defendant Derrick in the operation of the truck and an assault and battery on Russell by the other defendants. The jury returned a verdict for all the defendants and the case is here on the plaintiff's exceptions.

We will first consider the exceptions which relate to errors claimed to have been made during trial. The first of these is for failure of the court to charge a part of the plaintiff's request number 4. This part of the request, and in fact the whole of the same, is wholly abstract, and the plaintiff was not entitled to a literal compliance therewith, for charging abstract propositions of law is condemned. Johnson v. Moore, 109 Vt. 282, 287, 196 A. 246; Green v. Stockwell, 87 Vt. 459, 464, 89 A. 870; State v. McDonnell, 32 Vt. 491, 536. Moreover, the whole request was substantially complied with by the court's statement of the subject matter thereof as related to the facts and circumstances of the case.

The only ground advanced here, or below, for error in the court's failure to grant plaintiff's eleventh request is, in effect, that it pointed out to the court a claimed error in the charge and a method of correcting it. This latter error is said to be in the court's confining the question of Derrick's negligence in the matter of the operation of his truck to his conduct in this respect at the very spot where Russell received his injury. An exception to the court's charge was taken on the ground that by the charge the jury were so limited in their consideration of this issue. An examination of the charge discloses that taken as a whole, the jury were not so restricted as the plaintiff claims. Consequently no error has been made to appear either in the charge as given in this respect or in the failure to grant said request.

The plaintiff's fourteenth request to charge was predicated on the supposition that Derrick had testified he looked in the side mirror of his truck after it had started the last time before the accident and did not see Russell on the truck. The plaintiff did not point out to the court below, nor here in her brief, any such testimony in the case. Thus the failure to comply with this request was not error for, as far as it has been made to appear, it was not warranted by the evidence. Bailey v. Central Vt. Ry., 113 Vt. 433, 35 A.2d 365, 369.

The plaintiff excepted to the charge of the court because in stating a test for the jury in finding liability of the defendants other than Derrick the word “logical” was coupled with “natural” and “proximate” in respect to the result following from the claimed battery by these defendants. The ground of the exception was that “So long as the consequences are natural and a proximate result, such consequences do not have to be logical.” In her brief the plaintiff calls our attention to other places in the charge where the court used the word “logical” but its use as above stated is the only one apparently relied upon by the plaintiff in support of this claim of error and it is clear that in the other instances it was either correctly employed or if not, the plaintiff was not harmed thereby.

If we assume that the law is correctly stated in the plaintiff's ground for the exception it is clear that the jury could not have been misled by the charge in the respect claimed. Consequently if this wording was erroneous the resulting error was harmless. An examination of the charge shows that proximate cause was correctly defined and the jury were told, in substance, that a recovery could be had if the plaintiff had proved the necessary elements in her case including proximate cause.

It may be that the lawyer and the logician differ on what is to be considered as a proximate cause in a given case. It would be nonsensical, however, to order a reversal in this case on the theory that the jury might have disregarded the true test of proximate cause as given by the court in other instances in the charge and, because of the before noted use of the word “logical”, they might have adopted an erroneous test with a resulting verdict for the defendants. Vermont juries are not composed of lawyers and logicians nor, we believe we can say without fear of dispute, interested in their differences of opinion on the point in question to the extent that the subject would be debated in the jury rooms.

The plaintiff claims error in respect to certain argument by counsel for the defendants who were charged with the assault and battery. It appears that counsel had been arguing that unless the plaintiff had proved that George Sullivan struck Russell that he, Sullivan, could not be proved liable nor any of the other defendants. Counsel for the plaintiff interrupted this argument and excepted to it on the ground that there was evidence of contact between O'Donnell and Russell which the jury might find caused the injury and death. Before the court ruled on the exception, counsel for the defendants stated that the plaintiff should be required to state just which one of the defendants the plaintiff claimed assaulted Russell. The court ruled against the defendants and allowed them an exception to its ruling. Counsel for the defendants then continued his argument along the same line that he had been pursuing when interrupted. No objection was made nor exception taken to this subsequent line of argument.

This claim of error has no merit. Counsel for the plaintiff did not insist upon the exception originally taken. Apparently he was satisfied that the ruling of the court adverse to the defendants which was made after discussion of the matter between the court and counsel had removed any of the claimed harm in the argument, as further argument of a similar nature was permitted without objection or exception. The court had a right to believe that counsel was so satisfied. These facts and circumstances stand as an effective bar to this claim of reversible error.

We have seen that no error has been made to appear during the trial and the judgment must be affirmed unless reversible error is shown in the court's ruling on the plaintiff's motion to set aside the verdict This motion contained 4 grounds and was denied as a matter of law on all grounds. The plaintiff excepted to this ruling for that grounds 1, 3 and 4 of the motion were addressed to the discretion of the court and the court's ruling as a matter of law on these grounds was error and an abuse of discretion, inasmuch as the plaintiff was entitled to have the court exercise its discretion as to...

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34 cases
  • Helen O. Russell, Adm'x v. Martin Pilger Et Als
    • United States
    • Vermont Supreme Court
    • May 2, 1944
  • Sunday v. Stratton Corp.
    • United States
    • Vermont Supreme Court
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    ...come to different conclusions on the evidence. O'Brien v. Dewey, 120 Vt. 340, 348, 143 A.2d 130, 134-35 (1958); Russell v. Pilger, 113 Vt. 537, 550-52, 37 A.2d 403, 411-12 (1944). Appellant argues eloquently about the need, in our consideration, to " discount the manifestly incredible or ph......
  • RFT Mgmt. Co. v. Tinsley & Adams L.L.P.
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    • South Carolina Supreme Court
    • September 19, 2012
    ...could choose to set aside the verdict under the thirteenth juror doctrine. Id. at 633, 578 S.E.2d at 748 (citing Russell v. Pilger, 113 Vt. 537, 37 A.2d 403, 414 (1944)). We hold RFT has shown no abuse of discretion. The scope of representation offered by Law Firm was strictly limited in th......
  • RFT Mgmt. Co. v. Tinsley & Adams L.L.P.
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    • South Carolina Supreme Court
    • August 15, 2012
    ...court could choose to set aside the verdict under the thirteenth juror doctrine. Id. at 633, 578 S.E.2d at 748 (citing Russell v. Pilger, 37 A.2d 403, 414 (Vt. 1944)). We hold RFT has shown no abuse of discretion. The scope of representation offered by Law Firm was strictly limited in the r......
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