Butler v. Steck

• Decision Date: 20 January 1959
• Citation: 146 Conn. 114,148 A.2d 246
• Court: Connecticut Supreme Court
• Parties: William BUTLER, Administratot (Estate of Pierre F. Balch), v. James STECK, Sr., et al. Supreme Court of Errors of Connecticut

Page 246

148 A.2d 246

146 Conn. 114

William BUTLER, Administratot (Estate of Pierre F. Balch), v. James STECK, Sr., et al.

Supreme Court of Errors of Connecticut.

Jan. 20, 1959.

William P. Aspell, Hartford, with whom was George Muir, Hartford, for appellants (defendants Steck). Maurice Gersten, Hartford, with whom were Harry Cooper, Hartford, and, on the brief, William Butler, Hartford, for appellee (plaintiff).

Before DALY, C. J., and BALDWIN, MELLITZ, KING and MURPHY, JJ.

BALDWIN, Associate Justice.

The plaintiff's decedent received fatal injuries on May 2, 1957, when a motorcycle he was riding collided with the automobile of the named defendant, which was being driven by his son, the defendant James Steck, Jr. The present action under the wrongful death statute was tried to a jury. The jury returned a verdict for $6595.40 against the defendant Steck. The trial court, on the plaintiff's motion, set this verdict aside as inadequate. The defendants Steck have appealed. The only issue is whether the court's action was erroneous.

Our wrongful death statute allows the recovery of 'just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses.' Rev. 1958, § 52-555. We discussed our rule for measuring damages resulting from death in Chase v. Fitzgerald, 132 Conn. 461, 469, 45 A.2d 789, 163 A.L.R. 247, and we have refined it in subsequent decisions. Lengel v. New Haven Gas Light Co., 142 Conn. 70, 77, 111 A.2d 547; McKirdy v. Cascio, 142 Conn. 80, 84, 111 A.2d 555; Fairbanks v. State, 143 Conn. 653, 658, 124 A.2d 893; and Floyd v. Fruit Industries, Inc., 144 Conn. 659, 669, 136 A.2d 918, 924. We recapitulate from these cases the elements which enter into an award of damages for wrongful death. 'Damages for wrongful death, as such, are allowed as compensation for the destruction of the decedent's capacity to carry on life's activities, including his capacity to earn money, as he would have if he had not been killed. * * * In the case of one who is gainfully employed * * * the destruction of earning capacity may well be the principal element of recovery * * *. But * * * damages * * * are not restricted to those arising from the mere destruction of earning capacity. Some damages are recoverable for death itself, even though instantaneous * * *.' Floyd v. Fruit Industries, Inc., supra. If death is not instantaneous, the award may include an allowance for pain and suffering. Chase v. Fitzgerald, supra, 132 Conn. 468, 45 A.2d 792; see Reynolds v. Maisto, 113 Conn. 405, 406, 155 A. 504, and cases cited. Then too, there are the special damages enumerated in the statute: 'reasonably necessary medical, hospital and nursing services, and * * * funeral expenses.' The special damages in the present case amounted to $1,595.40. Since the verdict was for $6,595.40, it is proper to assume, as the trial court did, that the award for all the other elements enumerated heretofore was $5,000. No exception was taken to the charge on the matter of damages, and we must assume that it was an accurate and adequate statement of the law. Fairbanks v. State, supra.

It is true that the assessment of damages for wrongful death involves, at best, imponderables. The rule is extremely flexible and as applied by juries often produces seemingly irreconcilable results. The problem is one 'peculiarly appropriate for a jury's deliberation in which 12 individual judgments are set to the task of estimation, and the verdict is a composite of the views of the 12.' Lane v. United Electric Light & Water Co., 90 Conn. 35, 37, 96 A. 155, 156, L.R.A.1916C, 808. Trial by jury, however, is a trial in the presence and under the supervision of a judge empowered to instruct the jury on the law and to advise them on the facts, and, except on an acquittal of a criminal charge, to set aside their verdict, if it is, in his opinion, against the law or the evidence. Howe v. Raymond, 74 Conn. 68, 71, 49 A. 854, 855. '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 this 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.' Ibid.; 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 Specialties Co., 90 Conn. 18, 20, 96 A. 169; Loomis v. Perkins, 70 Conn. 444, 447, 39 A. 797; Maltbie, Conn.App.Proc., §§ 187, 196.

In a memorandum of decision on the motion to set aside the verdict, the trial court recited in considerable detail the facts established by the evidence relating to damages. These facts can be briefly stated as follows. The decedent was a young man, twenty-four years old and in good health. He had graduated from high school, served in the armed forces and been honorably discharged, and had in prospect employment which would pay him $1.53 an hour as a learner and ultimately $95 to $100 a week as a mechanic. His interests and abilities were primarily in mechanics. During his high school years he had worked part time for a television establishment. He had also been employed by a general contractor. His employers described him as a trustworthy and reliable worker. His absorbing interest was motorcycles and he intended to enter the business of selling and repairing them with his younger brother after the latter had finished his tour of duty in the armed forces. The life expectancy of the decedent was, actuarially, about forty-six years. He was injured about 5:45 p.m. and died about 8:10 p.m. on the same day. There was credible evidence that during some of this time he consciously suffered excruciating pain.

The jury are the judge of the credibility of witnesses and may accept or reject their testimony. A jury cannot, however, disregard evidence unless there is good reason to conclude that it is not credible. Roma v. Thames River Specialties Co., supra; Baril v. New York, N. H. & H. R. Co., 90 Conn. 74, 76, 96 A. 164; Dudas v. Ward Baking Co., 104 Conn. 516, 518, 133 A. 591; Pappaceno v. Picknelly, 135 Conn. 660, 662, 68 A.2d 117. The only practical test to apply to this verdict is whether the 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 mistook the law or were influenced by partiality, prejudice, mistake or corruption. McKirdy v. Cascio, 142 Conn. 80, 86, 111 A.2d 555, and cases cited; Mulcahy v. Larson, 130 Conn. 112, 114, 32 A.2d 161; Maltbie, Conn.App.Proc., § 197. This test must be applied in the first instance by the trial court. On appeal, we are reviewing primarily the action of the trial court. Joanis v. Engstrom, 135 Conn. 248, 251, 63 A.2d 151; Maltbie, op. cit., §§ 187, 196, 197. We determine upon the evidence whether the trial court, in exercising a large discretion, could legally act as it did, not whether we, upon the same evidence, would take the same action. 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, upon 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. The memorandum of decision shows the firm conviction of the trial court that the verdict was inadequate and that it was reached by considerations not properly applicable in the awarding of damages. See Levy v. Bromberg, 108 Conn. 202, 204, 142 A. 836. The evidence does not demonstrate the clear abuse of discretion which would warrant a reversal of the action of the trial court in setting aside the verdict.

There is no error.

In this opinion DALY, C. J., and MELLITZ, J., concurred.

KING, Associate Justice (dissenting).

I do not disagree with the basic statements of the applicable fundamental principles of law as given in the majority opinion. My disagreement is with their application to this case. I think the verdict of the jury, which in effect allowed but $5000 for post-mortem damages, while low, was reasonable on a permissible view of the evidence. The court's memorandum of decision granting the motion to set aside the verdict does not suggest that anything occurred during the trial which was calculated to arouse passion, prejudice or bias in the jury, nor that the charge was incorrect. See cases such as Ardoline v. Keegan, 140 Conn. 552, 555, 102 A.2d 352. The only substantial reasons advanced by the court for its action in setting aside the verdict were, first, that the defendant James Steck, Jr., made a fine appearance and the jury must have been unduly moved by him, and second, that the jury must have failed to understand the charge as to proximate cause in the law of damages. Nothing, except the bare amount of the verdict,...