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Burns v. Janes

Supreme Court of Rhode Island
Mar 6, 1979
398 A.2d 1125 (R.I. 1979)

Summary

In Burns v. Janes, 121 R.I. 343, 348-49, 398 A.2d 1125, 1128 (1979), we provided that: "It is well settled that hearsay evidence to which no objection is offered is entitled to be treated as if it were legally admissible and to be accorded whatever probative weight the factfinder believes it deserves."

Summary of this case from Tinney v. Tinney

Opinion

March 6, 1979.

PRESENT: Bevilacqua, C.J., Joslin, Kelleher, Doris and Weisberger, JJ.

1. TRIAL. Failure to Object to Hearsay Evidence. Hearsay evidence to which no objection is offered is entitled to be treated as if it were legally admissible and to be accorded whatever probative weight the fact finder believes it deserves; failure to object is deemed a waiver of the incompetency of such evidence.

2. ANIMALS. TRIAL. Failure to Object to Hearsay Testimony About Dog's Previous Behavior. In action to recover for personal injuries and pain and suffering sustained when plaintiff was attacked and bitten by defendants' dog, hearsay testimony, which was not objected to on grounds of hearsay and which related to fact that another person had previously been bitten by the dog, was relevant to issue of dog's vicious propensity and defendant's knowledge of the dog's earlier vicious behavior, and such testimony was admissible and was entitled to be accorded probative effect to extent the fact finder deemed appropriate. Rules of Civil Procedure, rule 46.

3. TRIAL. Failure to Make Motion to Strike Hearsay Testimony. In action to recover for personal injuries and pain and suffering sustained by plaintiff when attacked and bitten by defendants' dog, fact that hearsay testimony, which pertained to fact that dog had previously bitten another person, was not responsive to question asked of witness did not preclude such testimony from being treated as if it were legally admissible and of probative value where defendants did not immediately make a motion to strike the testimony.

4. APPEAL AND ERROR. WITNESSES. Cross-examination — Supreme Court Review. Scope and extent of cross-examination is matter within reasonable discretion of trial justice; Supreme Court's review is limited to whether the justice has abused that discretion.

5. WITNESSES. Use of Answers to Interrogatories to Impeach Credibility. Adverse party may use answers to interrogatories for any purpose, including impeaching credibility of a party as a witness, subject to the evidentiary rules of admissibility. Rules of Civil Procedure, rules 26(d), 33(b).

6. WITNESSES. Use of Answers to Interrogatories During Cross-Examination. In action to recover for personal injuries and pain and suffering sustained by plaintiff when attacked and bitten by defendants' dog, allowing plaintiff to use a defendant's answers to interrogatories during cross-examination of the defendant was not abuse of discretion. Rules of Civil Procedure, rules 26(d), 33(b).

7. TRIAL. Use of a View. A view cannot be used as evidence, but, rather, it is a device providing an opportunity for jurors as well as the court to understand the testimony to be adduced at trial.

8. TRIAL. Motion to Allow Jury to View. In action to recover for personal injuries and pain and suffering sustained when plaintiff was attacked and bitten by defendants' dog, denial of defendants' motion to allow jury to view the property at which the incident in question occurred was not abuse of discretion, particularly in light of fact that the request for a view was not made until near conclusion of trial.

9. NEW TRIAL. Duty of Trial Justice in Ruling on Motion. In ruling on motion for new trial, trial justice must independently pass on the material evidence in view of the law of the case and the weight and credibility he assigns to each of the witnesses.

10. NEW TRIAL. Trial Justice Required to Indicate Evidence Relied on in Making Decision. In reaching decision whether to grant or deny motion for new trial, trial justice is not required to state all of the evidence on which he relies, since he is free to accept some or all of the evidence as having a probative effect, but he is required to indicate the specific evidence on which he relies in making his decision.

11. ANIMALS. Establishing Dog's Vicious Propensity. In action in which recovery was sought for personal injuries and pain and suffering sustained by plaintiff when attacked and bitten by defendants' English bulldog and in which defendants' motion for new trial, subsequent to jury verdict for plaintiff, was denied, evidence supported conclusions that plaintiff had established that there was a vicious propensity on part of the dog and that defendants knew of their dog's vicious propensity.

12. ANIMALS. Award For Pain and Suffering and Permanent Damage Was Not Grossly Excessive. Award of $3,000 for pain and suffering and permanent damages sustained by plaintiff, who received numerous lacerations to his right leg, right hand and forehead when attacked by dog, who required a week of hospitalization and subsequent visits to physicians due to fact that one of the wounds ulcerated and who was out of work for five to six weeks and continued to suffer pain, was not grossly excessive.

Action was brought to recover for personal injuries and pain and suffering sustained by plaintiff when attacked and bitten by defendants' English bulldog. The Superior Court, Newport County, Carrellas, J., denied defendants' motion for new trial after jury returned verdict for plaintiff in amount of $4,713.67, and defendants appealed. The Supreme Court, Bevilacqua, C.J., held that: (1) hearsay testimony, which pertained to fact that dog had previously bitten another person and which was not objected to on grounds of hearsay, was admissible and entitled to be accorded probative effect to extent that fact finder deemed appropriate; (2) fact that such testimony was unresponsive to question asked of the witness did not preclude the testimony from being treated as if it were legally admissible and of probative value; (3) allowing plaintiff to use a defendant's answers to interrogatories during cross-examination of such defendant was not abuse of discretion; (4) denial of defendants' request to allow jury to view the property at which the incident in question occurred was not abuse of discretion; (5) evidence supported conclusions that plaintiff had established that there was a vicious propensity on part of dog and that defendants knew of their dog's vicious propensity, and (6) award of $3,000 for pain and suffering and permanent damages sustained by plaintiff was not grossly excessive.

Appeal denied and dismissed, judgment affirmed, and case remanded.

Kirshenbaum Kirshenbaum, Alfred Factor, for plaintiff.

Dean J. Lewis, for defendants.


This is a civil action for personal injuries and pain and suffering brought by Charles J. Burns (plaintiff) against William, Edna and Patricia Janes (defendants). The plaintiff brought an action in the Superior Court to recover for damages sustained when he was attacked and bitten by the defendants' one-year-old English bulldog. Subsequent to a jury verdict for the plaintiff in the amount of $4,713.67, the defendants made a motion for a new trial. The defendants' motion was denied and this appeal followed.

At the time the cause of action arose, the defendants William and Edna were husband and wife, and Patricia was their 20-year-old daughter.

It is uncontroverted that on September 11, 1972, plaintiff, a meter reader for the Newport Electric Corporation, entered defendants' enclosed backyard at 83 Division Street in Newport. At the time defendants' dog was in the backyard sitting on the rear stairs. The plaintiff proceeded to walk to the electric meter located approximately 20 feet from the dog.

The remaining facts are substantially disputed. The plaintiff testified that as he read the meter, the dog stood up and attacked him without provocation. He further testified that although he was screaming and kicking in an attempt to get the dog to release him, the dog bit him at least five times causing him to fall to the ground. He also claimed that during the attack, Mrs. Janes came out of the house and pulled the dog away from him by the collar. While Mrs. Janes controlled the dog, plaintiff got up and left the yard. Once in front of the house, plaintiff asked Mrs. Janes to call an ambulance which took him to Newport Hospital for treatment.

Mrs. Janes, the only defendant present during the incident, testified that on the morning in question she was standing in her kitchen when she first saw plaintiff. She claimed that plaintiff looked to the back stairwell, saw the dog, then "started to jump around and go crazy." She testified that because she knew then that plaintiff was frightened of the dog, she told plaintiff to stand still so she could get the animal.

Mrs. Janes further stated that when she entered the backyard and approached plaintiff, he threw his flashlight and meter book at her, causing the dog to attack him. She then testified that when she attempted to control the dog, plaintiff kicked her repeatedly. According to Mrs. Janes, the more plaintiff kicked her, the more the dog attacked plaintiff. She then stated that she finally restrained the dog and told plaintiff to leave the yard.

As a result of the incident, plaintiff received numerous lacerations to his right leg, right hand and forehead. Subsequent medical treatment for the lacerations revealed on his lower right leg a 1-2 centimeter ulcer requiring hospitalization. He entered Newport Hospital on September 29, 1972, for treatment of the leg ulcer and cellulitis of the lower right leg. The plaintiff was subsequently released on October 5, 1972 with instructions containing certain ambulatory restrictions for continued treatment of the ulcer at home. He returned to work on October 25, 1972, approximately 6 weeks after the initial incident.

On appeal, defendants contend that the trial justice committed three errors during the course of the trial. First, defendants claim that the trial justice improperly admitted hearsay testimony relating to the alleged vicious propensity of their dog. Second, defendants maintain that the trial justice erroneously allowed plaintiff to use Mrs. Janes' answers to interrogatories, which were characterized as prior inconsistent statements at trial, as probative evidence. Third, defendants further allege that the trial justice abused his discretion in denying their request to allow a view of the Division Street residence. The defendants argue that each of these specific errors is of sufficient magnitude to mandate a new trial. The defendants also argue that notwithstanding the alleged errors during the trial, the trial justice erred in denying their motion for a new trial and in concurring with the jurors' award regarding liability and damages.

I

The defendants maintain that plaintiff failed to meet his initial burden of proving by a fair preponderance of the evidence that their dog was prone to viciousness. The defendants bolster this contention by drawing our attention to the fact that the trial justice excluded as hearsay most of the direct testimony introduced by plaintiff's witness, Earl Smith (Smith), concerning an earlier attack on Smith's co-worker Larry Toppins (Toppins) by the same dog. The trial justice excluded this testimony because Smith did not witness the alleged incident. The trial justice did permit Smith to testify that he had observed a small nick in Toppins' boot. The defendants argue, however, that this testimony was insufficient to establish a vicious propensity in the dog since there was no admissible evidence connecting the dog's attack and the nick on the boot.

While the defendants objected to a portion of Smith's testimony as hearsay, they did not make a continuous objection, pursuant to Super. R. Civ. P. 46, to all his testimony concerning the alleged biting of Toppins.

[1, 2] The defendants' argument fails to consider Smith's subsequent testimony. They did not object to questions numbered 79, 82 and 83 even though they were predicated upon hearsay testimony not on the record. It is well settled that hearsay evidence to which no objection is offered is entitled to be treated as if it were legally admissible and to be accorded whatever probative weight the factfinder believes it deserves. McAree v. Gerber Products Co., 115 R.I. 243, 257, 342 A.2d 608, 615 (1975); Desrosiers v. Hemingway Bros. Interstate Trucking Co., 114 R.I. 146, 148, 330 A.2d 74, 76 (1975); Gilbert v. Girard, 109 R.I. 68, 71, 279 A.2d 919, 921-22 (1971). Such testimony is admissible because the failure to object to its admission is deemed a waiver of its incompetency. United States v. Lutz, 142 F.2d 985, 988-89 (3rd Cir. 1944); Gilbert v. Girard, 109 R.I. at 71, 279 A.2d at 921-22. Because Smith's testimony about the alleged previous biting was clearly relevant to the issues of the dog's vicious propensity and defendants' knowledge of their dog's earlier vicious behavior, Smith's testimony was admissible and entitled to be accorded probative effect to the extent the factfinder deemed appropriate. McAree v. Gerber Products Co., 115 R.I. at 257, 342 A.2d at 615; Gilbert v. Girard, 109 R.I. at 71, 279 A.2d at 921-22.

On redirect examination the following questioning and exchanges took place:

"79 Q Since Larry was bitten by the bulldog where have the people been putting their trash? A Out front on the sidewalk.

80 Q Have you or any of your men since that day, winter of '71 or '72, been inside the premises at 88 Division Street to pick the trash? A Not that I know of.

81 Q Tell the folks why. Mr. Lewis: Your Honor, I think we've had this testimony on both direct examination and cross-examination. Mr. Hirsch: It's a fair question. The Court: It's in there. I will allow it one more time. A Because he was bitten by the dog.

82 Q Thank you. That was the English bulldog? A That's right.

83 Q That was at 83 Division Street? A Right."

Although defendants did object to the question numbered 81, they grounded their objection on their belief that the anticipated testimony had been previously placed on the record. Following defendants' objection the trial justice allowed Smith to answer the question, reasoning that the testimony was already in the record. Smith's response to the question, however, was not responsive.

Our reading of the record indicates that the trial justice as well as the defendants presumed the objected-to question would be answered based on the previous testimony of Smith. That testimony alluded to the fact that the extensive use of plastic garbage bags caused an increasing number of people to leave their refuse on the sidewalk instead of in cans on their property.

We have previously held that if a witness gives an unresponsive answer to a proper question, the opposing party should immediately make a motion to strike the improper answer. Dawley v. Congdon, 42 R.I. 64, 69, 105 A. 393, 395 (1919). Therefore, defendant had the responsibility of making a motion to strike Smith's answer. Absent such a motion, Smith's response, even though based on hearsay, was properly allowed into the record and was entitled to be treated as if it were legally admissible and of probative value. Gilbert v. Girard, 109 R.I. at 71, 279 A.2d at 921-22.

[4-6] The defendants next argue that the trial justice erred in allowing plaintiff to introduce Mrs. Janes' answers to interrogatories during her cross-examination. It is well settled that the scope and extent of cross-examination is a matter within the reasonable discretion of the trial justice. Our review is limited to whether the trial justice abused that discretion. Pansey v. Pansey, 115 R.I. 97, 102, 340 A.2d 120, 124 (1975); Calci v. Brown, 95 R.I. 216, 220, 186 A.2d 234, 236-37 (1962); Feuti v. Feuti, 92 R.I. 219, 221, 167 A.2d 757, 758 (1961); Mikaelian v. Mikaelian, 86 R.I. 119, 125, 134 A.2d 164, 167 (1957). It is likewise well settled that an adverse party may use answers to interrogatories for any purpose, including impeaching the credibility of a party as a witness, subject to the evidentiary rules of admissibility. Halpert v. Rosenthal, 107 R.I. 406, 420, 267 A.2d 730, 737 (1970). We are therefore of the opinion that the trial justice did not abuse his discretion in allowing plaintiff to cross-examine Mrs. Janes by using her answers to interrogatories.

Super. R. Civ. P. 33(b) allows an adverse party to use answers to interrogatories to the same extent as provided in Super. R. Civ. P. 26(d) concerning the use of a party's deposition.

We now come to defendants' assertion that the trial justice erred in denying their motion for a view of the Division Street property. They argue that a view of the enclosed yard as well as the surrounding area would have been a helpful device during the trial and that the trial justice's denial of the motion was an abuse of discretion. In their belief, defendants have indicated that a twofold purpose would have been fulfilled by allowing a view of the area. First, defendants had hoped to have the jurors actually see the dog as well as observe the fact that he was in an enclosed yard. Second, defendants felt the view would have helped the jurors to understand the testimony better.

[7, 8] In denying the motion, the trial justice correctly asserted the well-established principle in this jurisdiction that a view cannot be used as evidence. Rather, it is a device that provides an opportunity for the jurors as well as the court to understand the testimony that is to be adduced at trial. Russo v. Stearns Farms Realty, Inc. 117 R.I. 387, 394, 367 A.2d 714, 718 (1977); Corrado v. Providence Redevelopment Agency, 110 R.I. 549, 556, 294 A.2d 387, 390 (1972); see Rietzel v. Cary, 66 R.I. 418, 424, 19 A.2d 760, 763 (1941); State v. Frazier, 101 R.I. 156, 161-62, 221 A.2d 468, 472 (1966). As the trial justice also noted, defendants' request was made very near the conclusion of the trial. A view taken near the end of the trial would not have helped to achieve a better understanding of the testimony. As a result we are of the opinion that the trial justice did not abuse his discretion in concluding that a view would not be of assistance to the jurors.

II

We now consider the trial justice's denial of defendants' motion for a new trial. The defendants urge that the trial justice erred in finding that plaintiff established liability in regard to the biting. Furthermore, defendants contend that even assuming arguendo that defendants were liable, the damages awarded by the jurors were disproportionate to the true merits of the controversy.

[9, 10] In ruling upon a motion for a new trial, a trial justice must independently pass on the material evidence in view of the law of the case and the weight and credibility he assigns to each of the witnesses. Barbato v. Epstein, 97 R.I. 191, 193, 196 A.2d 836, 837 (1964); Cottrell v. Lally, 94 R.I. 485, 489, 182 A.2d 302, 304 (1962); McLain v. Tripp, 73 R.I. 105, 110, 53 A.2d 919, 922 (1947). In reaching his decision the trial justice is not required to state all of the evidence upon which he relies since he is free to accept some or all of the evidence as having a probative effect. Barbato v. Epstein, 97 R.I. at 193, 196 A.2d at 837. He is required, however, to indicate the specific evidence upon which he relies in making his decision. Morinville v. Morinville, 116 R.I. 507, 511-12, 359 A.2d 48, 51 (1976).

Our review of the record indicates that the trial justice made his ruling on defendants' motion for a new trial in accordance with the procedure outlined above. The trial justice reviewed the evidence within the framework of his charge to the jury, which embodied the law of the case. The plaintiff had to show that defendants' dog had a vicious or mischievous propensity to bite or attack people and that defendants had knowledge or notice of that propensity. The trial justice thus reviewed the testimony of Smith concerning the alleged biting incident involving Toppins and the testimony of defendants' neighbor, Orville Ross, that while plaintiff was on the ground during the September 11, 1972 incident, defendants' dog "was in contact with the plaintiff's trouser leg" and that "[t]he dog was not friendly." In light of this testimony, the trial justice concluded that plaintiff had established a vicious propensity on the part of the dog. The trial justice also noted that since the Toppins' incident, defendants no longer leave their refuse in the back yard; they place it instead on the sidewalk in front of their house. The trial justice thus decided that defendants knew of their dog's vicious propensity. We hold that the trial justice did not err in those conclusions.

In determining whether the jurors' award was disproportionate to the amount of damages suffered by plaintiff, the trial justice first surmised that the jury award for damages was a composite of $3,000 for pain and suffering and permanent damages and $1,713.67 for compensatory damages. Citing Tilley v. Mather, 84 R.I. 499, 124 A.2d 872 (1956), the trial justice then stated that he would review the jurors' award only if it appeared to be grossly excessive.

In order to rule on the defendants' motion, the trial justice also had to decide whose account of the incident he found most credible. He indicated that he believed the plaintiff's injuries were caused by the dog's unprovoked attack. He noted that following the attack, one of the plaintiff's wounds ulcerated requiring a week of hospitalization and subsequent visits to his physicians. He also indicated that the plaintiff had been out of work approximately 5 to 6 weeks and that he continued to suffer pain. Basing his decision upon these findings, the trial justice found that the verdict was not grossly excessive and that there was no demonstrable disparity between the amount awarded and the pain and suffering endured by the plaintiff as a consequence of his injury. 84 R.I. at 502, 124 A.2d at 874. We conclude that the trial justice did not err in refusing to reduce the jurors' award of damages.

The defendants' appeal is denied and dismissed, the judgment appealed from is affirmed, and the case is remanded to the Superior Court.


Summaries of

Burns v. Janes

Supreme Court of Rhode Island
Mar 6, 1979
398 A.2d 1125 (R.I. 1979)

In Burns v. Janes, 121 R.I. 343, 348-49, 398 A.2d 1125, 1128 (1979), we provided that: "It is well settled that hearsay evidence to which no objection is offered is entitled to be treated as if it were legally admissible and to be accorded whatever probative weight the factfinder believes it deserves."

Summary of this case from Tinney v. Tinney
Case details for

Burns v. Janes

Case Details

Full title:CHARLES J. BURNS v. WILLIAM JANES et al

Court:Supreme Court of Rhode Island

Date published: Mar 6, 1979

Citations

398 A.2d 1125 (R.I. 1979)
398 A.2d 1125

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