Werner v. Lane

• Decision Date: 02 November 1978
• Citation: 393 A.2d 1329
• Parties: Katherine F. WERNER v. Rebecca White LANE and Fox and Ginn.
• Court: Maine Supreme Court

Page 1329

393 A.2d 1329

Katherine F. WERNER v. Rebecca White LANE and Fox and Ginn.

Supreme Judicial Court of Maine.

Nov. 2, 1978.

Norman & Hanson by Robert F. Hanson (orally), Dana A. Cleaves, Portland, for plaintiff.

Richardson, Hildreth, Tyler & Troubh by Harrison L. Richardson (orally), Glenn R. Anderson, Ronald D. Russell, Portland, for defendants.

Before POMEROY, WERNICK, ARCHIBALD, DELAHANTY and GODFREY, JJ., and DUFRESNE, A.R.J.

DUFRESNE, Active Retired Justice. ¹

On November 24, 1968 in late afternoon, Katherine Werner, the plaintiff, a woman in her late fifties, left her home on Jordan Avenue in South Portland where she resided with the intention of visiting the Holy Cross Church in the neighborhood. At the T intersection of Jordan Avenue with Highland Avenue, Miss Werner walked to the other side of Jordan Avenue so as to use the only crosswalk at that point which would permit her to reach the northerly sidewalk on Highland Avenue. She testified that, before attempting her crossing at the crosswalk, she looked for traffic in both directions but saw none. Without taking another look, she had nearly completed the crossing when she was struck by an automobile operated by the defendant, Rebecca Lane, which Miss Werner admitted she never saw. The defendant herself, a nineteen year old young lady with 11/2 years of driving experience, testified that she had a clear view of Highland Avenue as far as Jordan Avenue and had the lights going on her car, but saw the plaintiff too late to stop the automobile, even though she slammed on the brakes. She struck Miss Werner with her right front fender, propelling her through the air some 10 to 15 feet away, causing the plaintiff to suffer severe facial abrasions, a dislocated shoulder, multiple fractures of her pelvis and a broken knee.

The plaintiff's complaint, dated June 20, 1973, seeks compensatory damages for serious permanent physical and mental injury allegedly resulting from the accident, plus damages for the claimed aggravation of a previous psychiatric disorder and for consequential monetary loss due to past and future medical, hospital and nursing expenses. This negligence action was tried in July, 1975 before a Cumberland County jury which returned a (6 to 2) verdict for the defendant, indicating that Mrs. Lane was not guilty of any negligence which was a proximate cause of the accident.

The plaintiff has seasonably appealed from the ensuing judgment on several grounds: (1) the jury verdict is erroneous as a matter of law; (2) misconduct of counsel has denied the plaintiff a fair trial; (3) the refusal to give the jury a requested instruction was reversible error and (4) there was an abuse of discretion in the presiding Justice's denial of the plaintiff's motion for a new trial.

We sustain the appeal.

The plaintiff's motion for a new trial pursuant to Rule 59(a) M.R.Civ.P. ² should have been granted by the Justice below, as a review of the whole record convinces us that errors in the conduct of the trial deprived the plaintiff of that fair and impartial trial to which she was entitled under the law and the Constitution of Maine. It was an abuse of discretion for the presiding Justice to deny the same.

With the advent of the new rules of civil procedure adopted December 1, 1959, all motions for a new trial, for whatever cause, must now be addressed to the trial justice. Reporter's notes, Maine Civil Practice, 2nd Ed., Vol. 2, Field, McKusick and Wroth, page 54. The former optional choice of presenting a motion for new trial directly to the Law Court was abolished, but, as expressly provided by the rule, the same reasons for which new trials could previously be granted, whether on a direct motion to the Law Court or otherwise, may serve as proper foundation for such a motion before the trial court under the present mandated practice.

When, upon review of the whole record, it was obvious that, due to the cumulative effect of multiple serious and prejudicial trial errors, a party did not get that impartial and fair trial to which under the law he was entitled, the Law Court did not hesitate to sustain a motion for a new trial. Megguier v. DeWeaver, 139 Me. 95, 27 A.2d 399 (1942); Simonds v. Maine Telephone & Telegraph Co., 104 Me. 440, 72 A. 175 (1908); Pierce v. Rodliff, 95 Me. 346, 50 A. 32 (1901). Trial misconduct on the part of counsel similarly caused the setting aside of jury verdicts on motion for a new trial. Megguier v. DeWeaver, supra; Ritchie v. Perry, 129 Me. 440, 152 A. 621 (1930).

In appraising at the appellate level the propriety of the decision of the trial court upon a motion for a new trial, the test to be applied is, whether a clear and manifest abuse of discretion on the part of the trial justice is shown. Chenell v. Westbrook College, Me., 324 A.2d 735 (1974). It is the same rule as applies in the grant or denial of a motion for a mistrial, the latter usually being raised prior to verdict, while the motion for a new trial comes after the entry of judgment. See Quinn v. Moore, Me., 292 A.2d 846 (1972).

The rule applies, even if the technical niceties of procedural requirements have not been complied with, where the error of which the party appellant complains has deprived him of a fair trial and has resulted in injustice. Crocker v. Coombs, Me., 328 A.2d 389 (1974).

The plaintiff claims that the argument of the defendant's counsel to the jury constituted such misconduct on his part as to deprive the plaintiff of a fair and impartial trial and that the trial Court's failure to grant her motion for a new trial was reversible error.

In order to understand the plaintiff's contention, we must review to some extent what transpired at trial prior to counsels' closing arguments. During the trial, counsel for the plaintiff sought to prove that the accident of November 24, 1968 so aggravated a previous psychiatric disorder with which Miss Werner was afflicted that she had to be hospitalized at the Augusta Mental Health Institute, a state operated facility. As part of her claim for damages, the plaintiff attempted to introduce in evidence a bill from the Mental Health Institute for medical services rendered to her. The defendant's counsel seasonably objected, contending, out of the presence of the jury, that the plaintiff was not entitled to recovery of damages for such services, because the State did not intend to seek reimbursement for the medical care furnished Miss Werner. The presiding Justice, however, admitted the proffered document in evidence, ruling that the plaintiff was entitled to be compensated for the reasonable value of the medical assistance supplied gratuitously by the State.

In spite of the above ruling (as to which proper objection had been raised for later purpose of appeal, if necessary), the defendant's counsel in his closing argument chose to reveal to the jury that the plaintiff would not be required to pay that bill from the Mental Health Institute. Furthermore, the defendant's counsel directly charged the plaintiff's attorney with playing a bingo game in the case and trying to perpetrate a fraud. The trial Court passively permitted the critical evaluation of the conduct of the plaintiff's counsel without any specific admonition to the jury in relation thereto. The offensive portion of counsel's argument to the jury may be seen by consideration of the following excerpt:

"I have not produced them (Drs. Kunkle and Turcotte), because I don't think it is necessary to produce them. It's their burden. In the two weeks where we are today, they're giving you a whole bunch of records and say 'Look around in there and find something that says post-traumatic accident' and then tag this girl with a legal responsibility to pay some enormous sum in damages. It's a fraud.

"There are a lot of records in here. I have told you that you've got to look through them. I tried to give you some guidelines and guidance. Now, I promise I promise two more things. One, (plaintiff's counsel) has put this figure up on the board. All right. That, to me, is some(thing) completely and totally outside the province of any attorney that I cannot describe to you in any words how deeply that offends my sense of what is appropriate.

"Ladies and Gentlemen, it is your province and yours alone to make that decision. And, the reason he is putting that number up there is To psychologically condition you to get you started thinking about this thing like some kind of a bingo game. That's the reason he's doing it. There has been books written about it. How to do this with juries. There are books, you may think that's odd, but there are (No evidence in the record supports this extraneous fact, if a fact). He is trying to psychologically condition you to saying: 'Well, he's an Officer of the Court and he's a lawyer. He must know.' And so, he picks a number and sticks it up there. Then he invites you to play well; you now divide by two or by five or whatever. It's still money and I resent it.

"It is so deeply hostile to my whole notion of process for a number of reasons, one of which is (plaintiff's attorney) and (defendant's attorney) both have an interest in the outcome of this case. What I say to you isn't evidence. The Court will instruct you on that. He will tell you what (plaintiff's counsel) says isn't evidence. But, he is an Officer of the Court. You must not accept that figure for anything other than it is. It is absolutely a bingo game.

"The second thing is, if (sic) There is no evidence in this case of any intention on the part of the State of Maine to seek payment for services. None. Katherine Werner is in a mental institution, the Augusta Mental Health Institute operated by the taxpayers of the State of Maine." (Emphasis supplied)

Notwithstanding the admission in evidence of the Mental Health Institute's bill for the medical care rendered Miss Werner and the Court's previous ruling in connection therewith for the benefit of counsel...