Transit Authority of River City (TARC) v. Montgomery

• Decision Date: 03 September 1992
• Docket Number: SC-547-DG
• Citation: 836 S.W.2d 413
• Parties: TRANSIT AUTHORITY OF RIVER CITY (TARC) and Lester E. Midkiff, Appellants, v. Ruth E. MONTGOMERY, Appellee. 91-
• Court: United States State Supreme Court — District of Kentucky

Page 413

836 S.W.2d 413

TRANSIT AUTHORITY OF RIVER CITY (TARC) and Lester E Midkiff, Appellants, v. Ruth E. MONTGOMERY, Appellee.

91-SC-547-DG.

Supreme Court of Kentucky.

Sept. 3, 1992.

Allen Button, Gittleman & Barber, Louisville, for appellants.

Donald H. Smith, Louisville, for appellee.

REYNOLDS, Justice.

This appeal involves charges that the trial judge denied Ruth Montgomery a fair trial by reason of prejudicial remarks and conduct which allegedly resulted in a denial of her claims against Transit Authority of River City (TARC) and its driver, Lester E. Midkiff.

Appellee, Montgomery, was a passenger on a TARC bus driven by Lester E. Midkiff. This bus was specially equipped to handle three wheelchair passengers, wherein designated seats would "flip up" and allow a wheelchair to be locked in place. Appellee, who was not unduly handicapped, was sitting in one of the special seats when an automobile driven by Ernest Jarboe ran an intersectional red light and collided with the bus. Seat belts were not available to the appellee in the seat in which she was seated. Upon application of the bus brakes, appellee was thrown from the seat and sustained a fractured hip and pelvis.

The automobile driver, Jarboe, had been named as an original defendant, but settled with Montgomery and died prior to trial. The trial court judgment recited:

The fault of the intersection collision was determined to be the entire responsibility of the settling tortfeasor Ernest Jarboe.

. . . . .

The damages awarded the Plaintiff and due to the negligence of the settling tortfeasor Jarboe were as follows: $10,895.43 in medical expenses and $50,000.00 for pain and suffering.

Montgomery appealed and the Court of Appeals reversed the judgment of the trial court upon the belief that the misconduct of the trial court was palpable error requiring reversal and remand for a new trial. This Court granted discretionary review to Transit Authority of River City (TARC) and Lester E. Midkiff. The appellants (TARC and Midkiff) state that the issue of judicial misconduct has not been preserved as no contemporaneous objections were offered by Montgomery and by reason of the failure to move for a new trial. It is further asserted that neither any act or remark of the trial judge was so prejudicial as to constitute palpable error subject to review pursuant to CR 61.02.

The appellee alleges 31 instances of error that had the cumulative effect of prejudicing her case to such an extent that she was denied a fair trial. The instances of alleged error include sarcastic remarks by the trial judge, occasions when the judge inquired of jurors if they had questions for the witnesses, interruptions by the trial judge of witnesses and counsel, and alleged absences of the judge from the courtroom.

The claims of prejudicial error, raised for the first time on appeal, clearly mandated a complete review of the video proceedings of the three-day trial under the provisions of CR 61.02. The rule provides that "even though insufficiently raised or preserved for review, ... appropriate relief may be granted upon a determination that manifest injustice has resulted from the error."

Appellee relies primarily upon Collins v. Sparks, Ky., 310 S.W.2d 45 (1958), as the basis for affirming the Court of Appeals. Collins, supra, portrays a trend to relax the rule denying review except upon seasonable objection. While omitting contemporaneous objection, the Collins error was preserved in a motion for a new trial and, more notably, the "objectionable remarks" questioning the veracity of appellant's testimony as committed by the trial judge was conduct occurring during trial and before (in the hearing of) the jury.

The two basic circumstances in the Collins case which overlay its rationale and principle do not fit this case.

REMARKS BY TRIAL JUDGE

Some errors alleged by counsel involve sarcastic or disparaging remarks by the trial judge. The Court of Appeals noted that many of the instances of misconduct were meritless, while others were noted to be sarcastic remarks including the use of a blackboard and the reading of depositions.

It is axiomatic that the judge should refrain from making comments that tend to create prejudice to the litigants, the witnesses or the subject matter of the litigation. Commonwealth v. Eubank, Ky., 369 S.W.2d 15 (1963). A trial judge should remember that undue importance and great weight may be attached by the members of the jury to any remark made by him in their presence. Rose v. Vasseur, Ky., 358 S.W.2d 540 (1962). A remark, if improper, is not grounds for reversal if it does not reach the ears of the jurors. Eubank, supra. Mere casual remarks which do not tend to excite prejudice more to one party or the other in the presence of the jury may not be held improper. Eubank, supra. Thus, the propriety of these remarks must be judged and evaluated on the basis of the particular circumstances of each case.

Of the allegation of sarcastic or disparaging remarks, we do not note or view such statements to be either disparaging or sarcastic and prejudicing the parties involved. This Court finds that sarcasm is generally exhibited by contempt or disgust or remarks spoken bitterly or tauntingly or in a manner of rebuke delivered in a tone of contempt. This was not the portrayal so argued by appellee and, again, the majority of these discussions, other than the humorous comments about the blackboard, were outside the hearing of the jury. Such comments simply do not constitute reversible error.

JURORS' QUESTIONS AND TRIAL COURT INTERRUPTIONS

Some errors alleged by appellee pertain to situations where the judge asked jurors if they had any questions for the witnesses who were testifying and situations where the judge allegedly "interrupted" the appellee's witnesses and counsel. Appellee has mistakenly argued that the trial court's conduct was limited solely to the presentation of the appellee's case. Fair review of the video discloses that inquiry was made of the jurors for questions to be directed to appellants' witnesses as well.

(A) JUROR QUESTIONS

It was not improper, in this case, for a juror to ask any competent and pertinent questions of a witness, if permitted to do so by the court. Miller v. Commonwealth, Ky., 188 Ky. 435, 222 S.W. 96 (1920). In fact, the practice is encouraged with strict supervision by the trial judge, if it is likely to aid the jury in understanding a material issue involved. Louisville Bridge and Terminal Co. v. Brown, 211 Ky. 176, 277 S.W. 320 (1925); Stamp v. Commonwealth, 200 Ky. 133, 253 S.W. 242 (1923). Of course, if a juror should ask an incompetent or irrelevant question, counsel should object and the court should sustain such an objection. Brown, supra. Herein, each juror who proposed a question was called to the bench, with all counsel, and a preliminary review or comment as to any proposed question was discussed out of the hearing of the remaining jurors.

(B) TRIAL COURT INTERRUPTIONS

As a principle, it is fundamental that a judge may not act in the dual capacity of judge and advocate. Rankin v. Blue Grass Boys Ranch, Inc., Ky., 469 S.W.2d 767 (1971); Chism v. Lampach, Ky., 352 S.W.2d 191 (1961); Evans v. Humphrey, 281 Ky. 254, 135 S.W.2d 915 (1940). It is emphasized that a judge need not be a automaton or robot or mere umpire. Chism, Evans, supra.

Judges are sworn to administer justice and to that end should see that their decrees are carried out. Evans, supra, 281 Ky. p. 260, 135 S.W.2d 915. A...