Opinion
No. 4559.
Argued April 2, 1957.
Decided May 23, 1957.
1. In a negligence action by the plaintiff against three defendants which resulted in separate verdicts for the plaintiff against each of two defendants and one in favor of the third defendant, the first two defendants had no standing to attack the latter's verdict and judgment should have been rendered thereon where verdicts against all would give rise to no rights or liabilities between the defendants, either for contribution or indemnity, and the latter verdict was unquestioned by the plaintiff.
CASE, for negligence, to recover damages arising out of injuries resulting in death which were suffered by the plaintiff's intestate, as a pedestrian, when he was struck by the automobile of the defendant Jabre at Newington on November 4, 1953. The action was also brought against the defendant Miniter, owner and operator of a vehicle described by the writ as parked on the "northerly side" of the highway where the accident occurred, and the defendant Corson, owner and operator of a north-bound vehicle proceeding in the same direction as the vehicle of the defendant Jabre. Trial by jury, with separate verdicts for the plaintiff against each of the defendants Jabre and Corson, and in favor of the defendant Miniter.
The defendants Jabre and Corson moved to set aside the verdicts against them, and at a hearing on their motions orally moved to amend the motions to "include all the verdicts." The amendments were allowed by the Trial Court (Wheeler, C. J.), subject to the exception of the defendant Miniter. At a further hearing upon the amended motions, the defendant Miniter moved for judgment on the verdict in his favor. The motions to set aside the verdicts were thereafter denied, and the defendant Miniter's motion for judgment in his favor was likewise denied, subject to his exceptions.
The exceptions of the defendant Miniter were reserved and transferred by the Presiding Justice in advance of transfer of the exceptions of the other defendants to the denial of their motions to set aside the verdicts, and to other rulings made in the course of the trial, including exceptions to the instructions to the jury. The appendix to the reserved case contains plaintiff's declaration, the verdicts, and transcripts of the two hearings upon the motions.
Burns, Calderwood Bryant for the plaintiff, furnished no brief.
Thomas E. Flynn, Jr., Paul A. Rinden and George P. Cofran (Mr. Cofran orally), for the defendant Miniter.
Joseph E. Michael, Jr. (by brief and orally), for the defendant Jabre.
Fisher, Parsons Moran (Mr. Moran orally), for the defendant Corson.
The only exceptions presently before this court are those of the defendant Miniter to the order permitting amendment of the motions of the other defendants to set aside the verdicts, and to the denial of Miniter's motion for judgment in his favor. By this transfer Miniter seeks to establish that the other defendants have no interest in the verdict in his favor, and no standing to question it.
In our opinion the exception to the denial of Miniter's motion for judgment on the verdict should be sustained. He relies upon Beaule v. Weeks, 95 N.H. 453, which in our judgment is controlling. The defendants Jabre and Corson seek to distinguish that case upon the ground that the pending action is a single one against the three defendants, and the writ alleges that the damages were caused by the negligence of the defendants "severally as well as jointly and concurrently, in operating" their vehicles. These circumstances do not suffice to alter the general propositions found to be applicable in the Beaule case and equally applicable in this one. If found causally negligent, all of the defendants "would be under a common liability for the single injury resulting to the plaintiff." Beaule v. Weeks, 95 N.H. supra, 458. But as in that case, his injury "would nevertheless be the product of action taken by the defendants separately, and neither in cooperation nor in concert . . . and verdicts against [all] would give rise to no rights or liabilities between the defendants, either for contribution or indemnity." Ib. Also as in the Beaule case, the plaintiff has not attacked the verdict in favor of the defendant, and his cause of action against Miniter is the only one which will be adjudicated by judgment upon the Miniter verdict. It follows that the other defendants have no standing to attack that verdict.
It is true, as the defendants Jabre and Corson argue, that under the modern or more generally prevailing rule the Trial Court has discretion in appropriate circumstances to require a new trial as to all defendants where one is entitled to a new trial. But such discretion should be exercised only in cases where owing to "an interdependence of the rights of the defendants or because of other special factors, it would be prejudicial and inequitable to leave the judgment standing." Chmielewski v. Marich, 2 Ill. (2d) 568, 576. There is no evidence before us however to show that the liability of the several defendants was "so closely interwoven at the trial" (Fabrizi v. Golub, 134 Conn. 89, 99) that justice requires that all verdicts should stand or fall together. See Plante v. Canadian Nat. Rys., 138 Me. 215, 224-226. The case has none of the features relied upon in the decided cases to warrant a new trial as to all defendants if any is entitled thereto — such as a right of indemnity, subrogation or contribution, or the imposition of punitive damages. Anno. 143 A.L.R. 7, 30-43. See Continental Casualty Co. v. United States, 167 F.2d 107. The rights of the defendants Jabre and Corson are unaffected by the question of whether any error contributed to produce the verdict for Miniter. If it did, only the plaintiff was in a position to complain and he did not choose to do so.
The defendant Miniter's exception to denial of his motion for judgment is sustained.
Judgment for the defendant Miniter.
WHEELER, J., took no part in the decision; the others concurred.