Jewell v. Dyer

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. 89-138


Joyce Jewell and Ralph Jewell                Supreme Court

     v.                                      On Appeal from
                                             Addison Superior Court
William Jennings Dyer
and Pike Industries, Inc.                    May Term, 1990


Hilton H. Dier, Jr., J.

Timothy L.Taylor, Katherine P. Mosenthal and William H. Meub of Kelley,
   Meub, Powers & English, Ltd., Rutland, for plaintiffs-appellants

John D. Monahan, Jr. of Dinse, Erdmann & Clapp, Burlington, for defendants-
   appellees


PRESENT:   Peck, Gibson, Dooley and Morse, JJ.



     PECK, J.  Plaintiffs appeal from a jury verdict for defendants in an
action for personal injury and loss of consortium.  We affirm.
     Joyce Jewell, the plaintiff, was involved in an motor vehicle accident
with defendant William Jennings Dyer, who was driving a truck owned by
defendant Pike Industries.  Joyce Jewell sued for personal injuries
sustained in the accident; her husband, Ralph Jewell, brought a derivative
claim for loss of consortium.  At trial, there was conflicting testimony
about the circumstances of, and liability for, the accident.  Defendant
testified that he lost control of his truck as he was negotiating a downhill
curve, crossed the center line, and came to a stop off the traveled portion
of the road.  He stated that approximately thirty seconds after he stopped,
he saw plaintiff's pickup truck coming down the road.  According to
defendant, plaintiff lost control of her truck as she approached his
vehicle; the pickup left the road and struck defendant's truck near the
outside edge of the shoulder of the road.
     Plaintiff's account was very different.  She testified that both
vehicles were moving when the accident happened, and that defendant's truck
struck her pickup while she was taking evasive action to avoid a collision.
The jury found plaintiff seventy percent responsible for the accident,
assigning the remaining thirty percent of fault to defendant.  Application
of Vermont's comparative negligence statute, 12 V.S.A. { 1036, precluded any
recovery by plaintiffs.  After the trial court denied plaintiffs' V.R.C.P.
59 motion for a new trial, this appeal ensued.
     Plaintiffs maintain that the trial court erred in denying their motion
for a new trial without a hearing.  They argue that the jury's verdict was
illogical and against the weight of the evidence at trial, and that under
the circumstances, denial of the motion was an abuse of discretion war-
ranting reversal.  Finally, they contend that the trial court's failure to
instruct on unanimity in the jury verdict was improper, and that the
verdict cannot be upheld on appeal.
     Plaintiffs assert that the trial court was required to hold a hearing
on the motion for a new trial.  We disagree.  A hearing on a V.R.C.P. 59
motion, while generally favored as the better practice, is not mandatory,
particularly where, as here, the moving party has failed to show prejudice
flowing from the lack of a hearing.  Gardner v. Town of Ludlow, 135 Vt. 87,
92, 369 A.2d 1382, 1385 (1977).  Plaintiffs acknowledge that they are unable
to demonstrate prejudice in this case, but suggest that since the trial
court's denial was simply a notation on a motion entry form, unaccompanied
by any findings or conclusions, "there must be some chance that oral argu-
ment would have made a difference, and that therefore prejudice did occur."
Such speculation is insufficient to meet plaintiff's burden of demonstrating
prejudice on appeal to this Court.  Kalakowski v. Town of Clarendon, 139 Vt.
519, 527, 431 A.2d 478, 482 (1981).  In reviewing a trial court's ruling on
a motion for a new trial, we are bound to uphold the decision where the
trial court properly exercised its discretion in the matter, and where no
abuse of that discretion has been shown.  Costa v. Volkswagen of America,
150 Vt. 213, 217, 551 A.2d 1196, 1198 (1988).  Plaintiffs argue that the
trial court's discretion was abused because it was entirely withheld, or
exercised in a clearly unreasonable fashion.  Lent v. Huntoon, 143 Vt. 539,
552, 470 A.2d 1162, 1171 (1983).  We cannot agree.
     The trial judge must weigh the evidence in the light most favorable to
the verdict, and may not disturb the verdict unless it is clearly wrong.
Costa, 150 Vt. at 217, 551 A.2d  at 1199.  Plaintiffs urge adoption of a
different standard, for policy reasons, and also contend that the evidence
was overwhelmingly in their favor.  We decline to abandon the settled
standard in these cases, and our review of the record does not support
plaintiffs' contentions.
     This Court does not resolve factual disputes; that is the jury's
responsibility.  Turgeon v. Schneider, 150 Vt. 268, 271, 553 A.2d 548, 550
(1988).  "Where there is conflicting evidence on what occurred, it is up to
the jury to weigh the evidence and the relative credibility of the wit-
nesses."  Id.  In this case, the jury was required to reconcile sharply
conflicting accounts of the accident.  Eyewitness accounts were at variance
with one another, and other witnesses called by plaintiffs gave different
accounts of the weather conditions at the time of the accident from that in
defendant's testimony.  Nevertheless, it is precisely the function of the
jury to weigh the evidence in reaching a verdict.  Id.
     On cross-examination, the state trooper and other witnesses called by
plaintiff made statements corroborating defendant's assertions.  Defendant's
testimony is not so riddled with inconsistencies as plaintiffs contend, nor
is his account "anything approaching a physical impossibility."  Sunday v.
Stratton Corp., 136 Vt. 293, 308, 390 A.2d 398, 406 (1978).  Our review of
the record discloses that there was sufficient evidence to support the
jury's verdict, and we will not disturb their decision on appeal.
     The trial court ruled on the motion for a new trial approximately one
day after the defendants filed a response to plaintiffs' motion.  The court
denied the motion by checking a box on the standard entry order motion form.
Plaintiffs maintain that the trial court's actions indicate a failure to
give the motion due consideration and, therefore, the court withheld its
discretion by its summary treatment of the matter.  We are reluctant to
hobble the trial court in its efforts toward speedy resolution of disputes
by insisting that a specific length of time must pass before a court may
rule on a motion before it.  Furthermore, as noted earlier, though we agree
with plaintiffs that a hearing would have been preferable, we do not find
that the court abused its discretion by denying the motion by a notation on
the motion form.
     Plaintiffs' final argument concerns the jury charge.  They claim that
reversal is warranted because the trial court failed to instruct the jury on
the requirement of a unanimous verdict.  See V.R.C.P. 48.  Since plaintiffs
failed to make timely objection to the charge at trial, their claim is
waived on appeal.  V.R.C.P. 51(b); Lewis v. Lewis, 149 Vt. 19, 23, 538 A.2d 170, 173 (1987).  Even if the court's failure to charge on unamity con-
stituted error, and had been preserved for review on appeal, it was harm-
less.  A party challenging the trial court's instruction must show that the
charge was erroneous and that prejudice resulted.  Sachse v. Lumley, 147
Vt. 584, 588, 524 A.2d 599, 601 (1987).  In this case, the jury was obliged
to decide the respective negligence of plaintiff and defendant; after the
foreman announced the verdict, the court inquired whether the verdict was
unanimous, and the foreman replied that it was.  The transcript continues:
          THE COURT:  Ladies and gentlemen, is that the verdict of
                      all of you?

          (The entire jury panel indicated in the affirmative).

Under the circumstances, the court's failure to charge on unanimity did not
result in prejudice to plaintiff.
     Affirmed.


                                        FOR THE COURT:



                                        ___________________________________
                                        Associate Justice