Childrens Store v. Cody Enterprises

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 87-482


The Children's Store                         Supreme Court

                                             On Appeal From
     v.                                      Washington Superior Court

Cody Enterprises, Inc. and                   April Term, 1989
State of Vermont


Alden T. Bryan, J.

Richard E. Davis, Jr., of Richard E. Davis Associates, Inc., Barre, for
  plaintiff-appellant

Dorothy L. Helling of Theriault & Joslin, P.C., Montpelier, for defendant-
  appellee Cody Enterprises

James W. Spink of Dinse, Erdmann & Clapp, Burlington, for defendant-appellee
  State of Vermont


 PRESENT:  Dooley and Morse, JJ., and Barney, C.J. (Ret.), Martin, Supr. J.,
           and  Levitt, D.J., Specially Assigned



     DOOLEY, J.   The Children's Store (plaintiff) leased space in the "Cody
Block," a Montpelier building owned and maintained by defendant Cody
Enterprises, Inc. (Cody).  A fire consumed the building, and plaintiff sued
Cody alleging that Cody's negligence caused the fire.  Approximately three
years later plaintiff joined the State of Vermont (State), which ran a
liquor store in the building, as a defendant.  The complaint against the
State was dismissed because the court found that the statute of limitations
had run.  Trial by jury resulted in a verdict for Cody.  Plaintiff's motion
for a new trial was denied by the court.  Plaintiff now appeals both the
order granting summary judgment to the State and the denial of its motion
for a new trial.  We affirm as to defendant Cody and reverse as to
defendant State.
     Plaintiff argues here that: (1) the trial court improperly commented on
the weight of the evidence regarding a disputed issue of fact in the
presence of the jury; (2) the trial court failed to instruct the jury that
electricity is a dangerous agency; and (3) the trial court erroneously
granted summary judgment in favor of the State.  After a discussion of the
facts, we turn to plaintiff's arguments in order.
     The Children's Store was a tenant in the Cody Block, a mixed-use office
building in Montpelier.  The State of Vermont Liquor Store also leased space
in the block.  On December 20, 1980, a fire erupted and consumed a large
part of the building.  The Children's Store was destroyed.
     On October 28, 1983, plaintiff sued Cody alleging that Cody was
negligent in maintaining the electrical system in the building and that this
negligence was the proximate cause of the fire.  On December 20, 1983,
plaintiff moved to amend the complaint and to join the State of Vermont as
an additional party.  The motions were granted on January 17, 1984.  On
January 30, 1984, a summons was issued, and on January 31, 1984, the summons
and amended complaint were served on the Attorney General of the State of
Vermont at his offices in Montpelier.
     The State of Vermont answered the amended complaint and asserted the
affirmative defense of the statute of limitations. See V.R.C.P. 8(c); 12
V.S.A. { 512 (actions for injuries to persons or property "shall be
commenced within three years after the cause of action accrues, and not
after").  The State then moved for summary judgment on the ground that the
action was time-barred by the statute of limitations, and the trial court
granted the motion on August 13, 1986.  See V.R.C.P 56(b).
     Plaintiff's theory at trial was that the fire was caused by arcing
within electrical wiring in the space plaintiff leased.  The theory was
that the wire was coated with a rubber insulation, that the wire was very
old, that the insulation had become brittle and unsafe, and that the aging
of the insulation exposed bare copper wire to the metal conduit through
which the wire ran.  This exposure in turn caused an electrical arc and the
fire.  The jury also heard testimony that arcing often occurs if the
electrical power remains on during a fire, and, for this reason, it was
impossible to say what caused the fire.
     The jury trial resulted in a verdict for Cody.  The jury answered "no"
when asked by special interrogatory:  "Are you able to determine the
probable origin of the fire?"  The instructions specified that if the jury
could not determine the cause of the fire, it was to render a defendant's
verdict.  Plaintiff's motion for a new trial was denied, and this appeal
followed.
     Plaintiff's first argument is that the trial court's actions during
rebuttal argument denied plaintiff a fair and impartial trial, and therefore
reversal of the jury's verdict is required.  The action of the trial court
in issue came in response to an objection to plaintiff's closing argument.
Plaintiff had argued in closing that defendant Cody was negligent in failing
to follow up with a wiring inspection when fuses blew in the line to the
State liquor store.  Cody responded by arguing that the fuses were in a
different circuit, and therefore the cause of the blown fuses could not also
be the cause of the fire.  Plaintiff responded in rebuttal that Cody's
electrician had testified that the circuits involved were interconnected.
Cody's counsel objected to this rebuttal argument claiming it was not
supported by the evidence. Before the trial court ruled, it engaged in the
following colloquy with plaintiff's counsel:
         The Court:  Mr. Davis, I don't recall --

         Mr. Davis:  I will read it.

         The Court:  I think you better because that's not my
         memory.  I think that's so far off that I have to --

         Mr. Davis:  Well, I'm going to read it.

         The Court:  Go ahead.
     After plaintiff's counsel read extensively from the transcript and
resumed arguing, Cody again objected on the same ground.  An exchange
between counsel occurred, and the court intervened, ruling that plaintiff's
counsel could "finish his argument."  The court then initiated the following
discussion:
         The Court:  I understand what you're referring to here
         is not -- are you claiming that the two meters came from
         the upper box there where the fuses that we've been
         talking about were? . . . .

         Mr. Davis:  No.  No.  I'm saying the power went up
         through there, your Honor.  That's what I'm saying.

         The Court:  Are you saying that the liquor store line,
         the "L.Q." box was wired in above the 400 box somewhere
         in there?

         Mr. Davis:  Yes, sir.  That's what Mr. Brimblecomb said.

         The Court:  I beg to differ with you.  That's not what
         that says.

         Mr. Davis:  I have to disagree with the Court, if I may,
         just for a moment, and point out that Mr. Brimblecomb
         drew a plan which is their -- one of his exhibits. . . .
         Showing a line back there.

         The Court:  Where do you say the "L.Q." box is wired to?

         Mr. Davis:  It's wired to this meter.

         The Court:  Where does the meter get its source of
         power?

         Mr. Davis:  We don't know unless it comes out right here
         somehow.  There's nothing that comes out of the 800 or
         400.

         The Court:  Do you have any record in this case that
         that meter has its source of electricity up in the 200,
         100 box?

         Mr. Davis:  All of the electricity for the whole
         building, meaning the so-called liquor store building,
         if I can describe it that way, and not the so-called
         Gleason building, because that had all separate
         circuits.  Was powered through here [sic].

         The Court:  Okay.  I do not understand the evidence that
         way.  I'll let you finish your argument.  And Ms.
         Helling will have a chance to answer that. . . .  I'll
         let her address that.  We'll leave it to the jury to
         decide which version.
     Plaintiff argues that the expressions of opinion in the above
statements of the court deprived it of a fair trial.  Cody responds that the
court did not commit error but even if it did, the error is not grounds for
reversal because it was harmless in view of the eventual verdict of the jury
and it was not preserved for review.  We find that the court's statements
were not error and do not reach Cody's other arguments.
     Every litigant is entitled to a fair trial, free from the suspicion of
partiality. See Auger v. Auger, 149 Vt. 559, 561, 546 A.2d 1373, 1374
(1988).  Thus, in Auger, we reversed where the court below assumed the
active interrogation of witnesses and took over control of presentation of
the evidence.  Similarly, in Ricci v. Bove's Admin., 116 Vt. 406, 411, 78 A.2d 13, 18 (1951), this Court noted that "under { 28 of our constitution
every person is entitled by law not only to a fair trial of his case, but to
one free as may be from suspicion of partiality."  Based on this principle,
we held that a judge who could not conduct an impartial hearing in a case
must be disqualified.  Id. at 410, 78 A.2d  at 17.
     We cannot agree that these principles were violated in this case.  At
the most, the trial judge's statements were comments on the weight of
plaintiff's evidence.  We have consistently held that such comments are
proper as long as the ultimate question of the weight of the evidence is
left to the jury.  The general rule was stated in Seviour's Admin. v.
Rutland R.R. Co., 88 Vt. 107, 110, 91 A. 1039, 1040 (1914) as follows:
          There is no legislative provision or judicial holding in
          this State that bars the court from expressing its
          opinion regarding the evidence and the weight of the
          evidence.  The right is seldom exercised, but its
          existence remains unquestioned.  The expression must,
          however, be fair and reasonable, and be accompanied by
          instructions which plainly leave the determination with
          the jury.

See also State v. Malnati, 109 Vt. 429, 433, 199 A. 249, 250-51 (1938) (no
error in trial judge's statement of opinion that there was perjury in the
case where the decision and the evaluation of the credibility of witnesses
was left to the jury); Foss v. Sherwood, 104 Vt. 141, 147, 157 A. 834, 836
(1932).
     The trial court acted within its discretion.  It made clear in the
challenged statements that the question of whether the evidence supported
plaintiff's argument was left to the jury.  During the charge, the trial
judge stated that the jury was the exclusive judge of the facts and added
"[n]either I nor anyone else may invade your province."  The judge went on
to state:
          You must not infer from any ruling that I've made or from
          anything that I've said during the course of the trial that I
          hold any views for or against either of the parties to this
          lawsuit.  Even if I did, any views of mine would be totally
          irrelevant, since it's your recollection of the evidence and
          your determination of the issues of fact which control.

By these instructions, the trial court left the ultimate determination of
all issues of fact to the jury.
     The judges comments were also fair and reasonable.  He was trying to
understand plaintiff's claim for the electrician's testimony.  If the
testimony supported plaintiff's position, it was only by implication.  It
was proper for the court to indicate that he did not see how the testimony
supported plaintiff's position and to ask questions about it in the course
of ruling on the objection.
     We need not address plaintiff's second claim that the court committed
error in not charging that electricity is a dangerous agency.  Plaintiff
made this argument conditional on the grant of a new trial on its first
argument in order to clarify the issue for retrial.  The jury's decision
that it could not determine the cause of the fire renders harmless any error
relating to the standard of care applicable to Cody.  Since there will not
be a retrial against Cody, there is no reason to reach the issue.
     Plaintiff's third argument relates to the grant of summary judgment for
the State.  Plaintiff's argument has two parts: (1) plaintiff filed its
complaint against the State within the statute of limitations on December
20, 1983 and that date controls even though the court granted the motion to
allow joinder of the State almost a month later; and (2) even if the filing
occurred when the court granted the motion to join the State, the time
relates back under V.R.C.P. 15(c) to when the original complaint against
Cody was filed, well within the limitation period.  On the first part of the
argument, defendant State asserts that even if December 20, 1983 is to be
considered the date of filing, a point the State vigorously resists,
plaintiff lost the benefit of this date by failing to serve the State within
thirty days as required by V.R.C.P. 3.  The trial court only briefly
addressed the first part of plaintiff's argument by holding that the
complaint was filed on January 17, 1984 when the court granted the motion to
amend the complaint and add the State as a party defendant.
     The parties agree that 12 V.S.A. { 512(5) is the appropriate statute of
limitations in this case.  That statute requires that an action be
"commenced" within three years after the cause of action accrues.  The
parties also agree that the cause of action accrued on December 20, 1980
and, therefore, the action had to be commenced by December 20, 1983.  On
that date, plaintiff filed the motion to add the State as a party along with
the complaint plaintiff would serve on the State if the motion were granted.
The first question we must address is whether that filing was sufficient to
commence the action against the state for purposes of 12 V.S.A. {512(5).
     The state and federal courts that have confronted this question have
held that an action against a new party, brought in through amendment to a
preexisting complaint, is commenced when the motion to amend, and the new
complaint, is filed even though permission to make the amendment is given at
a later date.  See Mayes v. AT&T Information Systems, 867 F.2d 1172, 1173
(8th Cir. 1989); Wallace v. Sherwin Williams Co., 720 F. Supp. 158, 159 (D.
Kans. 1988); Gloster v. Pennsylvania R.R. Co., 214 F. Supp. 207, 208 (W.D.
Pa. 1963); Moore v. Flower, 108 Mich. App. 214, 217, 310 N.W.2d 336, 337
(1981), remanded, 414 Mich. 897, 898, 323 N.W.2d 6, 6 (1982), on remand, 121
Mich. App. 235, 237-38, 329 N.W.2d 35, 36 (1982); Charlton v. M.P.
Industries, Inc., 314 S.E.2d 416, 419-420 (W. Va. 1984).  The rationale is
explained in Gloster v. Pennsylvania R.R. Co. as follows:
          To give sanction to objections to the amendment, that
          leave to amend must await the actual placement of a
          judge's signature on an order to amend, would be to lend
          impracticality and injustice to federal judicial
          processes and procedure.  This case is an example. ...
          The Court had need for researching and deliberating upon
          the law as applied to the facts of the case, and this
          had to be done while applying time and energy to the
          many other matters in a busy court.  The necessary time
          so consumed ... should not and cannot be permitted as an
          obstacle to justice.  Such is the intendment and spirit
          of the Federal Rules of Civil Procedure.

214 F. Supp.  at 208.  We concur with the analysis of the court in Gloster.
If the date of commencement is based on when the court grants the motion to
amend rather than when the plaintiff files the motion and proposed
complaint, the plaintiff is left with uncertainty over whether the statute
of limitation requirements will be met.  The matter is out of the hands of
the plaintiff and is controlled by the vagaries of the court's workload.
The better rule is that the action is commenced when the plaintiff files the
motion to amend and the proposed complaint irrespective of when the court
grants the motion to amend.  In this case, the action was commenced on
December 20, 1983.
     Defendant argues that even if the date of commencement was December 20,
1983, plaintiff lost the advantage of this date by failing to serve the
State within thirty days as required by V.R.C.P. 3.  By this argument,
defendant is attempting to obtain the benefit of the holding in Weisburgh v.
McClure Newspapers, Inc., 136 Vt. 594, 595, 396 A.2d 1388, 1389 (1979) that
the filing of a complaint tolls the statute of limitations only if timely
service under the Rules of Civil Procedure is accomplished.  This is,
however, a misuse of Weisburgh.
     V.R.C.P. 3, as it existed when this action was commenced in the trial
court, required service "within 30 days after the filing of the complaint."
Defendant's theory is that the filing must have occurred on December 20,
1983, when the proposed complaint and the motion were filed in the trial
court, since as decided above the action against the State was commenced on
that date.  Thus, defendant argues that plaintiff had to serve the State by
January 20, 1984, and it failed to do so since service did not occur until
January 31, 1984.  In defendant's view, the action commenced on December 20,
1983 must be dismissed and cannot act to place plaintiff within the
limitations period.
     Defendant's theory confuses the date of commencement of an action for
statute of limitations purposes with the date of filing for purposes of
V.R.C.P. 3.  It would lead to the absurd result that if the court took
longer than thirty days to act on the motion to amend, the plaintiff would
be unable to serve the complaint.  A more reasonable construction of the
rule establishes the date of filing for purposes of V.R.C.P. 3 as the date
the court grants the motion allowing plaintiff to amend its complaint and
add a party defendant.  There is no reason that this date must be the same
as the date of commencement for purposes of the statute of limitation.  In
this case, the court granted the motion to amend on January 17, 1984 and
plaintiff served the complaint well within thirty days thereafter.  The
amended complaint is not subject to dismissal for tardy service.
     Because we hold that plaintiff commenced its action against the State
of Vermont within the limitation period, we do not reach its relation back
argument.

     The judgment for defendant Cody Enterprises, Inc. is affirmed.  The
judgment for defendant State of Vermont is reversed.


                                             FOR THE COURT:



                                             ______________________________
                                             Associate Justice