Appeal from judgments entered on cross-claims in United States District Court for the District of Vermont, Holden, Ch.J., in a diversity case after a jury trial. The jury, responding to special verdict questions submitted to them, found appellant estate solely liable to plaintiffs for damages caused by the negligent operation of an automobile by appellant's decedent. Bennington Ford and Ford Motor Company were codefendants with appellant, and appellant had cross-claimed against them for indemnification. The trial judge entered judgments denying recovery on appellant's cross-claims, and appellant, maintaining prejudicial trial error, seeks reversal of the judgments so entered and a remand for a new trial on its cross-claims.
Waterman, Friendly and Gurfein, Circuit Judges.
WATERMAN, Circuit Judge :
On December 3, 1969 Mrs. Mary P. Butler was returning her relatively new 1970 Ford Maverick automobile to the vendor, Bennington Ford, for further servicing of a malfunction which caused the car to lurch at a certain speed. En route an accident occurred. While attempting to overtake and pass another vehicle, Mrs. Butler pulled out onto a snow-covered center lane of a three-lane highway. The Butler car veered into the left-hand lane and struck an oncoming truck driven by Norman Cote and owned by LaValley Oil Company. Mrs. Butler was killed. Mr. Cote was seriously injured. LaValley sustained property damage to its truck.
Following this accident three diversity actions were commenced in the United States District Court for Vermont. In separate actions, Cote and LaValley each sued three defendants, the Butler Estate, alleging the negligence of Mrs. Butler; Bennington Ford, alleging negligence and breach of warranty; and Ford Motor Company, alleging breach of warranty. In each of these actions the defendant Butler Estate cross-claimed against Bennington Ford and Ford Motor Company, alleging breaches of the warranty of fitness by vendor and manufacturer, and alleging their negligence; and Bennington Ford cross-claimed against Ford Motor Company.
In a third and separate damage action brought by different counsel, the Butler Estate, alleging negligence and breach of warranty, sued Ford Motor Company and Bennington Ford for Mrs. Butler's wrongful death.
The three cases were consolidated by the trial court and were so tried by a jury. The trial lasted fourteen days, and the trial transcript exceeds 2300 pages. The trial judge, after instructing the jury, submitted special verdict questions which the jury was to answer. There were nine of these questions; five in the Cote and LaValley cases in which the Butler Estate, Bennington Ford, and Ford Motor Company were codefendants; and four in the case in which the Butler Estate was plaintiff and Bennington Ford and Ford Motor Company were codefendants.
In the two cases in which Cote and LaValley were the plaintiffs, the jury found Mrs. Butler to have been negligent and her estate liable to each of the plaintiffs for damages. Defendants Bennington Ford and Ford Motor Company were found not liable for breaches of warranty, and defendant Bennington Ford was found not liable for negligence.
In the third action, in which the Butler Estate was the plaintiff, the jury exonerated Bennington Ford and Ford Motor Company for any breach of warranty, but found Bennington Ford liable to the Butler Estate for negligence.
The trial judge accepted the verdicts as returned and ordered the entry of judgments on the verdicts. Thereafter he ruled in favor of each cross-defendant upon each cross-claim asserted and denied any recovery on any cross-claim.
All parties found liable filed notices of appeal, but, adjustments having been made thereafter, the single remaining appeal presented for appellate disposition is this appeal of the defendant Butler Estate in the cases in which Cote and LaValley were plaintiffs, and the sole issue before us is the Butler Estate's contention that it should be granted a new trial on its cross-claims against Bennington Ford and Ford Motor Company, which it asserted in each of those cases, and upon which the trial judge denied any recovery. The Butler Estate contends that the trial court erred in entering judgment for Bennington Ford and Ford Motor Company on these cross-claims.
We affirm the decision below.
The major issues which the Butler Estate raises on appeal involve the omission, from the special verdict questions the jury was ordered to answer, of questions relating to the cross-claims of defendant Butler Estate and the subsequent disposition of the cross-claims by the trial judge. These objections do not require the reversal of the judgment below for a variety of reasons. In these cases, which involved several parties and numerous causes of action, the use of special verdicts was a prudent expedient for simplifying the issues and for preventing confusion. As to the claimed erroneous omission from the special verdict questions of questions relating to the cross-claims, the Butler Estate submitted relevant questions for the consideration of the trial judge prior to submission. However, any objections it may have been entitled to make were waived by its subsequent failure to bring exceptions to the omission to the attention of the trial judge. The appellant had numerous opportunities to note exceptions: immediately following the instructions to the jury, on the next day after further charges to the jury, and even later after the jury had returned the verdicts. Indeed, after the verdicts had been returned, the court inquired if there were objections to the form of the verdicts and the appellant then stated only "cross-claim, I think." This late, vague objection lacked sufficient clarity to apprise the trial judge of the alleged omission and prevents appellate review of the issue. See Fed. R. Civ. P. 49(a); John R. Lewis Inc. v. Newman, 446 F.2d 800 (5 Cir. 1971); 9 Wright & Miller, Federal Practice and Procedure § 2507 (1971). Appellant, of course, claims it was surprised by all this, but in view of the time available to counsel in which to study the questions the court submitted and to formulate and to note exceptions, appellant's claim of surprise must be rejected.
Moreover, on the basis of the jury's responses to the special interrogatories, the trial judge was entirely correct in the disposition he made of the cross-claims. The Butler Estate, the defendant in the actions brought by Cote and LaValley, had cross-claimed for indemnification from its codefendant Ford Motor Company, alleging breach of warranty of fitness, negligence and strict product liability in the design and manufacture of the vehicle's transmission. The Butler Estate also asserted that codefendant Bennington Ford, as vendor, had been negligent in the inspection and maintenance of the automobile, had breached an implied warranty of fitness, and had sold a defective and dangerous automobile. Plaintiffs Cote and LaValley in each of their complaints had alleged breaches of warranty by Bennington Ford and Ford Motor Company and so had the plaintiff Butler Estate in the third action. The trial court gave complete instructions on the elements necessary to find liability on the implied warranty, and when, in response to the special interrogatories, the jury found Bennington Ford and Ford Motor Company not liable for breach of warranty in the Cote and LaValley cases, there was no basis, under Vermont law, for indemnification of the Butler Estate by either of these codefendants against whom the Butler Estate had cross-claimed. Vermont law does not allow contribution among joint tortfeasors, and therefore the trial judge properly excluded ...