Barrett v. Adirondack Bottled Gas Corp.
Barrett v. Adirondack Bottled Gas Corp.
Opinion of the Court
Seeking damages for breach of contract, plaintiffs James and Susan Barrett brought suit against defendant Adirondack Bottled Gas Corp. of Vermont following defend
I.
On the second day of the six-day trial, while cross-examining Mr. Barrett, defendant’s counsel propounded without notice to the court or plaintiff the following question:
Q. Mr. Barrett, I’d like you to refer to page 6 of your deposition, at line 5, do you recall my asking you the following question, “Mr. Barrett, have you ever been convicted of a crime ?”
The judge immediately called a recess and, in chambers, twice termed the issue of criminal conviction “unduly prejudicial.” He offered, and ultimately delivered, a limiting instruction. The plaintiff did not then request a mistrial, seeking a new trial only after the adverse verdict.
Cross-examination concerning prior convictions in order to discredit a witness is limited to convictions of crimes involving moral turpitude within fifteen years, 12 V.S.A. § 1608,
Defendant’s counsel has never contended that plaintiff’s prior misdemeanor assault conviction itself reflected moral turpitude. Rather, counsel contends that the question was designed to show that plaintiff had made a false statement under oath on a previous occasion and that his credibility as a witness was thus suspect. Although the credibility of a witness is always open to attack and wide latitude should be allowed on cross-examination for this purpose, the scope of this latitude is not unlimited, particularly on collateral issues. State v. Berard, 132 Vt. 138, 147, 315 A.2d 501, 507-08 (1974). The question about plaintiff’s prior conviction was collateral to the issues of this case. It forced a suppressive objection from the plaintiff and significantly prejudiced plaintiff in a way that the jury could not have ignored despite any curative instruction.
Defendant argues that, because plaintiff failed to move for a mistrial at the time the incident occurred, he acquiesced in the court’s handling of the matter and waived any further relief. Plaintiff points to McBrine v. Fraser, 128 Vt. 514, 516, 266 A.2d 809, 810-11 (1970), in support of his contention that his failure to move for a mistrial or otherwise object to the trial court’s actions until after the unfavorable verdict does not bar a subsequent motion for new trial. In McBrine, the plaintiff, a passenger in an automobile, sued for injuries caused in a collision with the defendant’s car. Defendant’s counsel questioned the plaintiff’s drinking habits and DWI convictions. While plaintiff’s counsel did not except, this Court ruled that the issue was preserved by motion to set aside the verdict and for a new trial. In accord with Ronan v. J. G. Turnbull
[T]he prejudice inhered in the questions themselves. . . .
The court did not charge the jury to disregard the evidence in question and, even if it had done so, it would only have emphasized the evidence and not have corrected the error since the harm, once done, is not necessarily erased from the minds of the jury. State v. Garceau, 122 Vt. 303, 307, 170 A.2d 623.
McBrine, supra, 128 Vt. at 517, 266 A.2d at 811; accord Paul v. Drown, supra, 108 Vt. at 462, 189 A. at 146 (“the prejudice inhered in the offer itself”).
Defendant contends that McBrine was overruled by Rollo v. State, 139 Vt. 26, 421 A.2d 1298 (1980). We disagree. In Rollo, plaintiff’s objection interrupted defendant’s closing argument when counsel began suggesting to the jurors that they, as taxpayers, would ultimately be liable for any amount awarded to plaintiff. Following objection by opposing counsel, the trial court instructed the jury to disregard the remarks, and plaintiff made no further objection or motion until after the jury returned with its verdict. This Court held, in light of the trial court’s action and plaintiff’s apparent satisfaction with the curative instructions, that the trial court’s denial of a motion for new trial was not an abuse of discretion. The Court went on to say that, having been previously satisfied with the trial court’s handling of the matter, plaintiff would not be heard to claim error because her gamble on a favorable verdict did not pay off. Id. at 28, 421 A.2d at 1299.
In the instant case, defendant claims plaintiff did not object because he was “gambling” on the verdict, a practice this Court has condemned. Id.; State v. Bartlett, 137 Vt. 400, 405, 407 A.2d 163, 166 (1979). Whether plaintiff was gambling or not, it is clear that the prejudice caused by counsel’s question was of such a magnitude as to be irreparable by any curative instruction the court might have given. In comparison with the error in Ronan, supra, where counsel inquired about an unrelated driving episode, the question put to plaintiff herein about a prior criminal conviction had much more dam
II.
Because this case must be retried, we address the cross-appeal, wherein defendant claims that the trial court erroneously submitted to the jury the issue of breach of warranty. Defendant contends the issue should not have been given to the jury in view of the contractual provision that “[n]o warranties, expressed or implied other than entered on this contract apply.” Plaintiff argues that the issue cannot be withheld from the jury, citing 9A V.S.A. § 2 — 316(5), which states:
The provisions of subdivisions (2), (3) and (4) of this subsection [describing methods for excluding warranties] shall not apply to sales of new or unused consumer goods or services. Any language, oral or written, used by a seller or manufacturer of consumer goods and services, which attempts to exclude or modify any implied warranties of merchantability and fitness for a particular purpose or to exclude or modify the consumer’s remedies for breach of those warranties, shall be unenforceable. For the purposes of this section, “consumer” means consumer as defined in chapter 63 of Title 9. (Emphasis added.)
The definition of “consumer,” found at 9 V.S.A. § 2451a (a) in chapter 63 of Vermont’s Consumer Fraud Act, reads as follows:
“Consumer” means any person who purchases or contracts for the purchase of merchandise or services not for resale in the ordinary course of his trade or business but for his use or benefit or for the use or benefit of a member*294 of his household or in connection with the operation of his household.
Whether plaintiff, an absentee landlord buying a propane tank for use in an apartment building, is a “consumer” within the meaning of 9A V.S.A. § 2 — 316(5) is a question of first impression, requiring us to construe the phrase “his use or benefit” in 9 V.S.A. § 2451a(a). Defendant urges an inference that, in context with the parallel phrases “for the use or benefit of a member of his household,” and “in connection with the operation of his household,” the phrase “his use or benefit” applies only to transactions of a personal, family or household nature. This interpretation is consistent with the definition of “consumer goods” in 9A V.S.A. § 9 — 109(1), made applicable to Article 2 by 9A V.S.A. § 2 — 103(3) ; § 9 — 109(1) provides:
Goods are
(1) “consumer goods” if they are used or bought for use primarily for personal, family or household purposes.
Goods thus are classified according to the use to which they are put by the consumer. The statute clearly implies that goods used by a consumer for commercial purposes are not “consumer goods.” Plaintiff contends that the propane tank was not used for commercial purposes but rather for personal and household use, i.e., cooking and heating in residential apartments. The evidence is undisputed, however, that plaintiff did not live in any of the apartments served by the tank and that the apartment buildings were commercial enterprises owned and operated by plaintiff for business purposes. We therefore hold that plaintiff was not a “consumer” within the meaning of 9A V.S.A. § 2 — 316 (5) and that the contractual disclaimer of warranties was not abrogated by that statute.
Reversed and remanded.
Plaintiff Susan W. Barrett was dismissed from the ease at the close of the evidence.
The question propounded was not an isolated incident. Earlier in cross-examination, defendant’s counsel had questioned the correctness of plaintiff’s payroll records by suggesting they had not withstood an I.R.S. audit. After the court sustained an objection to this endeavor, counsel persisted in a manner clearly calculated to place the excluded evidence before the jury: “Isn’t it true, Mr. Barrett, you’ve been audited by the Internal Revenue Service?” Again there was an objection, again sustained.
V.R.E. 609, which went into effect after this case was tried, includes the provisions of 12 V.S.A. § 1608.
We note here a literary effort by one of the jurors, written prior to jury deliberations and not, apparently, shared with the other jurors. The composition of the poem came at the end of a busy term in which the juror had served on a number of cases, and her observations cannot be limited to this one trial. We do not reach plaintiff’s argument of juror misconduct because the case must be retried in any event.
Self-Serving Evidence
Locked in the jury box, forced to find fairness in eyes frightened by well-kept memories and forgotten facts.
Sitting, shifting in swinging seats with invisible zippers through our lips. Peacocks object and are sustained by their own symphonies.
Kept men and women, pulled from other important lives, llJ.XJ'JUJL l/dllb UVCDj threatened by penalties and a conscience of the American Way.
Buzzed to rise, to fall, told finally to speak in search of a single truth from disembodied, twisted words.
Concurring in Part
concurring in part and dissenting in part. I concur with the majority in the result reached in this case, but in view of the fact that the issue of juror misconduct is not reached, I must dissent from including the reference in the majority opinion to the attempted literary effort by a juror in that it is irrelevant and clutters up the Vermont Reports with unnecessary verbiage.
Reference
- Full Case Name
- James W. Barrett and Susan W. Barrett v. Adirondack Bottled Gas Corp. of Vermont
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- 4 cases
- Status
- Published