Urbani v. Razza

• Decision Date: 15 February 1968
• Docket Number: No. 137-A,137-A
• Citation: 103 R.I. 445,238 A.2d 383
• Parties: Mafalda URBANI v. Oreste RAZZA. ppeal.
• Court: Rhode Island Supreme Court

Page 383

238 A.2d 383

103 R.I. 445

Mafalda URBANI v. Oreste RAZZA.

No. 137-Appeal.

Supreme Court of Rhode Island.

Feb. 15, 1968.

Kirshenbaum & Kirshenbaum, Howard I. Lipsey, Providence, for plaintiff

Warren M. Pulner, George A. Pliakas, Providence, for defendant.

OPINION

JOSLIN, Justice.

This is a civil action to recover damages for an alleged breach of an express contract. Following the entry of a judgment in the superior court on a jury verdict for the defendant, the trial justice denied the plaintiff's motion for a new trial, and the plaintiff appealed. The only ground urged on the appeal is to an evidentiary ruling.

The parties are sister and brother. The plaintiff owned a 1960 Chevrolet station wagon; her brother a 1955 Pontiac. In 1963 she purchased a new automobile, traded in his 1955 Pontiac and transferred her station wagon to him. On these facts there is no dispute. The conflict in the testimony is on whether the transaction was one of sale or of gift. The plaintiff testified that it was a business transaction, and that her brother agreed to pay her the difference between the value of the station wagon and what she received as a trade-in allowance on the Pontiac. The brother's version that the automobiles were exchanged as gifts was corroborated by the affidavits which the parties filed with the tax administrator. In them each claimed an exemption from the sales tax and stated in substance that the transfer of his or her vehicle to the other was intended as a gift. On this evidence the jury were instructed that they had but two choices-return a verdict for plaintiff in the amount of $1,282.45 or one for defendant. They found for defendant.

The appeal is based on an evidentiary ruling which occurred during the direct examination of plaintiff. She had testified in essence that she and her brother had driven their respective vehicles to Butler Auto Sales, Inc., where the new car was purchased and the 1955 Pontiac traded in, and that it was there that they '* * * had the dealer price the '60 wagon * * *.' She was then asked what price she and her brother had agreed upon for the station wagon and she responded '$1,282.45.' The next question was how they had arrived at that figure and, instead of detailing the simple arithmetical exercise which produced the result, she replied 'Because the wagon at that time was worth $1,788.00.' At this point defendant objected.

Whether plaintiff had by then concluded her answer, or instead had been interrupted and her answer cut short by the objection, the record does not disclose. In any event, a discussion relating to the question then ensued between court and both counsel, and thereafter substantially the same question was again posed to the witness. Again there was objection. The trial justice found in the question a hint by plaintiff's attorney '* * * to the witness that she gave the wrong figure' and an attempt '* * * to suggest to her that she made a mistake.' Upon those findings he ruled that the question was leading, and that the witness could not testify further on how she and her brother arrived at the figure of $1,282.45.

It appears from an offer of proof which was made in the absence of the jury that the witness, if allowed to answer, would have testified that the sum of $1,282.45, which she said defendant had agreed to pay for her station wagon, had been arrived at by deducting the amount of $505.55 received on the trade-in of the 1955 Pontiac from the appraisal value of $1,788 which had been put on the station wagon by a Butler Auto salesman.

The issues for us are whether the question was proper, and if so, whether plaintiff was prejudiced by the exclusion.

It has, of course, long been settled that the admission of leading questions is within the discretion of a trial justice, State v. Tracey, 12 R.I. 216; Cole v. Barber, 33 R.I. 414, 82 A. 129. In the exercise of that discretion he has 'considerable latitude,' Lanni v. United Wire & Supply Corp., 87 R.I. 121, 128, 139 A.2d 149, 153, and his rulings will be reviewed 'only for manifest abuse of his discretion,' Ashton v. Higgins, 80 R.I. 350, 357, 96 A.2d 632, 636, or where 'substantial injury has been done,' Wilson v. New York, N.H. & H.R.R., 18 R.I, 598, 601, 29 A. 300, 301.

What we review here, however, is not whether the trial justice erred in allowing a leading question, but whether the question was improper and the testimony sought to be elicted therefore inadmissible. It is often said that a leading question is one which suggests the desired answer. Williams v. Smith, 29 R.I. 562, 72 A. 1093. More precisely, however, a suggestive question is leading and hence improper only if '* * * it so suggests to the witness the specific tenor of the reply desired by counsel that such a reply is likely to be given irrespective of an actual memory,' United States v. Durham, 4 Cir., 319 F.2d 590, 592, or if it '* * * is framed so that by is answer through a 'yes' or 'no' on the part of the witness the witness is empowered to echo back the words of counsel, and thus give the desired answer in the desired form upon a point material to...