Birgel v. Heintz

Decision Date19 April 1972
Citation301 A.2d 249,163 Conn. 23
CourtConnecticut Supreme Court
PartiesCarol L. BIRGEL et al. v. Howard T. HEINTZ et al.

Peter M. Ryan, Darien, with whom was Joseph J. Rucci, Jr., Darien, for the appellant (named plaintiff).

Noel R. Newman, Bridgeport, with whom, on the brief, was Edgar W. Krentzman, Bridgeport, for the appellees (defendants).


SHAPIRO, Associate Justice.

On August 3, 1968, an automobile owned by the defendant Howard T. Heintz and operated by his son the defendant John T. Heintz left the traveled portion of the Merritt Parkway in the town of New Canaan and struck a concrete bridge abutment. A passenger in the vehicle, Carol Linda Birgel, hereinafter referred to as the plaintiff, then twenty years old, was severely injured. A suit in her behalf was instituted by her father Henry T. Birgel against the defendants for damages for her injuries. The father in his own behalf also sought to recover as damages the medical expenses which he had incurred on behalf of his daughter. The action was tried to a jury which returned a verdict for $22,500 in favor of the plaintiff and for $5309.41 in favor of her father. The plaintiff moved to set aside the verdict on the ground that it was inadequate. The court denied the motion and only the plaintiff has appealed from the judgment rendered therein. 1

The only assignments of error pursued by the plaintiff in argument before us relate to the claims that the court erred in its refusal to set aside the verdict as inadequate and in its ruling on the admission of evidence.

The judgment from which the plaintiff appeals reflects the recovery for her as shown in the verdict. The verdict rendered in favor of the plaintiff was predicated on her claim for damages for injuries sustained by her and for those medical expenses incurred by her since she reached the age of twenty-one, as well as for her claims regarding the future. Her claim for damages was so presented by the court in its charge to the jury. While the amended complaint does not properly raise the plaintiff's claim for damages, the parties have treated the issue as did the court. This is clearly demonstrated by the fact that no exception was taken by the defendants to the jury charge, to the form of the verdict or the form of the judgment. We shall, therefore, follow the parties in this regard. Maltbie, Conn.App.Proc. § 42.

In recent cases we have had frequent occasion to repeat the considerations which must govern our decision in an appeal such as that before us where the claim is that the jury award is inadequate. See Bates v. Frinder, 161 Conn. 566, 287 A.2d 739; Rood v. Russo, 161 Conn. 1, 3, 283 A.2d 220; Jerz v. Humphrey, 160 Conn. 219, 246 A.2d 884; Marin v. Silva,156 Conn. 321, 240 A.2d 909, and cases cited. In reviewing the action of the trial court on a motion to set aside a verdict, our primary concern is to determine whether the court abused its discretion and whether, on the evidence presented, the jury could fairly reach the conclusion they did. Rood v. Russo, supra; Marin v. Silva, supra, 323, 240 A.2d 909; Desmarais v. Pinto, 147 Conn. 109, 110, 157 A.2d 596; Butler v. Steck, 146 Conn. 114, 117, 148 A.2d 246; Giambartolomei v. Rocky DeCarlo & Sons, Inc., 143 Conn. 468, 474, 123 A.2d 760; McWilliams v. American Fidelity Co., 140 Conn. 572, 575, 102 A.2d 345; Prosser v. Richman, 133 Conn. 253, 256, 50 A.2d 85.

On appeal we determine on the evidence presented in the apppendices whether the trial court, in exercising its large discretion, could legally act as it did, and not whether we, on the same evidence, would make the same ruling. Pischitto v. Waldron, 147 Conn. 171, 175, 158 A.2d 168; Butler v. Steck, supra, 146 Conn. 119, 148 A.2d 246. From the vantage point of the trial bench, a presiding judge can sense the atmosphere of a trial and can apprehend far better than we can, on the printed record, what factors, if any, could have improperly influenced the jury. Zullo v. Zullo, 138 Conn. 712, 715, 89 A.2d 216; State v. Hayes, 127 Conn. 543, 554, 18 A.2d 895; Loomis v. Perkins, 70 Conn. 444, 447, 39 A. 797. We cannot disturb the decision of the trial court unless there are 'considerations of the most persuasive character.' Mulcahy v. Larson, 130 Conn. 112, 114, 32 A.2d 161, 162; Hauk v. Zimmerman, 135 Conn. 259, 261, 63 A.2d 146.

" In passing upon a motion to set aside a verdict, the trial judge must do just what every juror ought to do in arriving at a verdict. The juror must use all his experience, his knowledge of human nature, his knowledge of human events, past and present, his knowledge of the motives which influence and control human action, and test the evidence in the case according to such knowledge and render his verdict accordingly. . . . The trial judge in considering the verdict must do the same . . . and if, in the exercise of all his knowledge from this source, he finds the verdict to be so clearly against the weight of the evidence in the case as to indicate that the jury did not correctly apply the law to the facts in evidence in the case, or were governed by ignorance, prejudice, corruption or partiality, then it is his duty to set aside that verdict and to grant a new trial.' . . . (Howe v. Raymond,74 Conn. 68, 71, 49 A. 854); Cables v. Bristol Water Co., 86 Conn. 223, 224, 84 A. 928; Capital Traction Co. v. Hof, 174 U.S. 1, 13, 19 S.Ct. 580, 43 L.Ed. 873; see Bissell v. Dickerson, 64 Conn. 61, 29 A. 226. The trial judge has a broad legal discretion and his action will not be disturbed unless there is a clear abuse. Allen v. Giuliano, 144 Conn. 573, 578, 135 A.2d 904; Slabinski v. Dix, 138 Conn. 625, 628, 88 A.2d 115; Brower v. Perkins,135 Conn. 675, 681, 68 A.2d 146; Roma v. Thames River Specialities Co., 90 Conn. 18, 20, 96 A. 169; Loomis v. Perkins, 70 Conn. 444, 447, 39 A. 797; Maltbie, Conn.App.Proc., §§ 187, 196.' Butler v. Steck, supra, (146 Conn.), 116-17 (117, 148 A.2d 246); cited with approval, Marin v. Silva,supra, (156 Conn.), 326-27 (327, 240 A.2d 909). A mere doubt of the adequacy of the verdict is an insufficient basis for such action. Hauk v. Zommerman, supra, (135 Conn.) 260, (63 A.2d 146); Mulcahy v. Larson,supra, (130 Conn.) 114, (32 A.2d 161). A conclusion that the jury exercised merely for judgment is likewise insufficient. Jerz v. Humphrey, supra, (160 conn.) 226, (276 A.2D 884). the ultimate test which must be applied to the verdict by the trial court is whether the jury's award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption. Rood v. Russo, supra, (161 Conn.) 5, (283 A.2d 220); Jerz v. Humphrey, supra, (160 Conn.) 224, (246 A.2d 884); Marin v. Silva, supra, (156 Conn.) 323, (240 A.2d 909): Pischitto v. Waldron, supra; McKirdy v. Cascio, 142 Conn. 80, 86, 111 A.2d 555; Mulcahy v. Larson, supra, (130 Conn.) 114, (32 A.2d 161); Maltbie, Conn.App.Proc. § 197. The plaintiff makes no claim that the jury were prejudiced or corrupt. In argument before us and in her brief she does claim that the jury made a mistake, resulting in an award so low that it shocks the sense of justice in that the jury failed to evaluate properly the extent of her injuries and the consequences to her resulting from the accident.

In its memorandum of decision on the motion to set aside the verdict, the trial court demonstrated a firm conviction that the verdict was not inadequate. The memorandum of decision recited that the plaintiff suffered a simple fracture of the pelvis and a simple fracture of the fibula, a cerebral concussion, lacerations and contusions, injuries to her teeth and to her pituitary gland; that she had an excellent recovery from a substantial part of her injuries except that she was unable to have a regular menstrual flow until January, 1970, when it was induced by the administration of estrogen and that it has been regular since that time with the taking of certain drugs. The court held that in 'the light of all the facts the finding of the jury is not so shocking or so unreasonable as to shock one's sense of judgment.'

We examine the evidence printed in the appendices to the briefs to determine whether the court abused its discretion in denying the motion to set the verdict aside. Bates v. Frinder, 161 Conn. 566, 287 A.2d 739; Hook v. Dubuque, 153 Conn. 113, 114, 214 A.2d 376; Vogel v. Sylvester, 148 Conn. 666, 668, 174 A.2d 122. Viewing the evidence in the case at bar, it is clear that the jury were afforded a considerable range within which they could properly arrive at a conclusion. Although there was evidence presented which might support a larger award, a less sizable award, such as that found by the jury, could also be supported by the evidence. It is not our function to pick out or select the evidence most favorable to the plaintiff and on the basis of that evidence determine whether the trial court abused its discretion in refusing to set aside the verdict as inadequate. Carey v. Burgess, 150 Conn. 567, 192 A.2d 43; Conti v. Brown, 149 Conn. 465, 467, 181 A.2d 591; Quednau v. Langrish, 144 Conn. 706, 715, 137 A.2d 544. Where a claim is made that the damages are inadequate, our function is to view the evidence printed in the appendices in light of the fact that the jury may reasonably accept or reject all, part or none of the evidence presented which they can reasonably conclude is not to be credited. Magnotti v. O'Brasky, 159 Conn. 607, 268 A.2d 374; Verrillo v. Green, 155 Conn. 694, 230 A.2d 20; Conti v. Brown, supra; Desmarais v. Pinto, supra, 147 Conn. 112, 157 A.2d 596; Pinto, supra, 147 Conn. 112, 157 A.2d 596; A.2d 246; Martino v. Palladino, 143 Conn. 547, 549, 123 A.2d 872; Giambartolomei v. Rocky DeCarlo & Sons, Inc., supra. The evidence as to the...

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