Wilder v. DiPiazza
Wilder v. DiPiazza
Opinion of the Court
This appeal is from the Circuit Court of Jefferson County, where a jury returned a verdict in favor of the defendant John DiPiazza, Jr. We affirm the judgment of the trial court for both defendants.
On January 4, 1983, Elizabeth Wilder filed a three-count complaint against John DiPiazza, Jr., and John DiPiazza, Sr., alleging that the son negligently or wantonly drove a car into the plaintiff's vehicle, resulting in property damage and personal injuries to her. Wilder's third count contained *Page 1092 a theory of negligent entrustment against the father. After filing motions to dismiss, which were denied, both defendants filed responsive pleadings, generally denying the allegations and raising the affirmative defenses of contributory negligence and assumption of the risk. The son also filed a counterclaim for property damage to his car. After discovery was completed, the father moved for summary judgment, which was denied.
On April 2, 1984, the defendants filed a motion for separate trials of the claim against the father (negligent entrustment) and the claims against the son (negligence and wantonness). The motion was denied. However, prior to striking the jury, the motion was renewed and granted by the court after oral argument. The court also dismissed the wantonness count and the counterclaim.
Trial commenced on July 23, 1984, on the negligence claim against the son, and after three days of testimony, the plaintiff rested. The defendant son moved for a directed verdict, which the court denied. The jury returned a general verdict in favor of the defendant son. The court entered judgment for both defendants. Consequently, the claim against the father was not tried. The plaintiff moved for a new trial; the motion was denied, and this appeal followed.
On appeal, Wilder raises five issues for our consideration. We briefly consider each issue in turn.
(1) Whether the trial court's separation of the claims against the DiPiazzas, Jr. and Sr., for trial purposes was an abuse of discretion.
Under the Alabama Rules of Civil Procedure, the trial court may order a separate trial of any claim or issue "in furtherance of convenience or to avoid prejudice. . . ." A.R.Civ.P. 42 (b). Generally, trial judges have broad discretion to order separate trials. Robinson v. ComputerServicenters, Inc.,
In the present case, Wilder joined the negligence claim against the son with the entrustment claim against the father. In the entrustment claim, Wilder would have had to prove the incompetence of the son as an element of the claim to show that the father knew or should have known of his son's incompetence and was thereby negligent in the entrustment. See, e.g., Bruckv. Jim. Walter Corp.,
(2) Whether the defendant's objection to the treating physician's testimony about the percentage of his patients fully recovering from oral surgery was properly sustained.
It was not reversible error to exclude this evidence, as it was totally immaterial to the issues involved in this case. C. Gamble, McElroy's Alabama Evidence § 21.01 (b) (3d ed. 1977).
(3) Whether the defendant's objection to evidence of the cost of repairs to the automobile he was driving was properly sustained.
The trial court did not abuse its discretion by sustaining the defendant's objection to evidence as to the cost of repairs to the automobile. Wilder argues that the evidence was intended to impeach the defendant son's testimony of his speed prior to the accident. However, this evidence regarding repair costs would have had little *Page 1093 probative value in establishing the defendant's speed at the time of the collision. Also, the evidence would draw attention from the main inquiry, and it was, thus, within the trial court's discretion to disallow the evidence.
(4) Whether the trial court properly denied Wilder's motion for a new trial.
No ground of a motion for a new trial is more carefully scrutinized or more rigidly limited than that the verdict is against the weight of the evidence. Cooper v. Peturis,
After the jury returned a verdict for the defendant, Wilder filed a motion for a new trial on the grounds that the verdict was contrary to the weight of the evidence. The trial court denied this motion, and Wilder claims the denial was error. We disagree, as there is sufficient evidence in the record to support both the jury's verdict and the subsequent denial of Wilder's motion for a new trial.
(5) Whether the trial court was correct in disallowing questions on home ownership during jury voir dire.
According to the Alabama Code, the trial court has the duty to determine whether a juror possesses the qualifications required by law. Code 1975, §
"`[E]ach party has the right to have questions formulated by it propounded to the jury, either by the court or by the party as the court may determine, if such questions reasonably relate under the circumstances to the question of the qualification or interest or bias on the part of the prospective jurors.'"
459 So.2d at 833, quoting Griffin v. State,
In the case below, Wilder's counsel attempted to ask on voir dire the following question concerning homeownership:
"MR. CHAMBLEE: I'll go through again and ask you individually, just go through and you can nod your head or just say yes or no and I will ask if you either — I'm going to ask you if you own your home or are buying your home? I am not concerned — I will rule out by that rental or whatever. . . ."
The trial court, however, refused to allow the question on the basis that it was not a relevant avenue of inquiry. According to Wilder, the question is based on §
"It is good ground for challenge of a juror by either party:
"(1) That the person has not been a resident householder or freeholder of the county for the last preceding six months."
Code 1975, §
Because the trial court ruled properly on all issues raised in this appeal, we affirm the judgment below.
AFFIRMED.
TORBERT, C.J., and MADDOX and HOUSTON, JJ., concur.
JONES, J., concurs in the result.
Concurring Opinion
I agree completely with this Court's holding that the trial court was correct in disallowing questions on home ownership during jury voir dire. I arrive at this ultimate destination, however, by a somewhat different route. Section
". . . a resident of the county for more than 12 months."
Section
"(1) That the person has not been a resident householder or freeholder of the county for the last preceding six months."
Literally construed and applied, these two statutes mandate that the trial court disqualify any prospective juror who has not been a "resident of the county for more than 12 months"; and that, upon challenge by either party, the trial court must likewise excuse for cause any juror who has not been a "resident householder or free-holder of the county for the last preceding six months." In other words, the "resident householder or freeholder" ground for challenge is viable notwithstanding the juror's qualification as a "resident of the county for more than 12 months." Thus, if a prospective juror is qualified under the 12-month requisite of §
This irrefutable analysis of these two juror qualification statutes leads to the equally irrefutable conclusion that, given the validity of the "resident householder or freeholder" qualification requisite, the trial court erred in rejecting the Appellant's inquiry concerning home ownership. The statute furnishes an unconditional ground for challenge of any juror who has not been a resident householder or freeholder for the last preceding six months. Thus, the challenge has nothing to do with "a relevant avenue of inquiry" or the trial court's exercise of its discretion.
The "not a relevant avenue of inquiry" reason given by the trial court cannot withstand appellate review unless we hold forthrightly that the trial court had the right to totally ignore the "householder or freeholder" qualification. Indeed, this, in legal effect, is exactly what the trial court necessarily did in disallowing the question. It seems altogether too obvious on its face to warrant discussion that §
For this reason, I would affirm and make it abundantly clear that this antiquated ground for challenge of a juror must be struck down as repugnant to our federal and state constitutions.
Reference
- Full Case Name
- Elizabeth U. Wilder v. John A. Dipiazza, Jr., and John A. Dipiazza, Sr.
- Cited By
- 8 cases
- Status
- Published