Cappella v. New York, N. H. & H. R. Co.

• Decision Date: 17 January 1967
• Citation: 154 Conn. 410,226 A.2d 394
• Court: Connecticut Supreme Court
• Parties: Louise CAPPELLA v. The NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY et al.

Page 394

226 A.2d 394

154 Conn. 410

Louise CAPPELLA v. The NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY et al.

Supreme Court of Connecticut.

Jan. 17, 1967.

Howard F. Zoarski, New Haven, for appellant (defendant Margaret conte).

John H. Peck, New Haven, with whom, on the brief, was Anthony J. LaSala, New Haven, for appellee (plaintiff).

Before KING, C.J., and ALCORN, HOUSE, THIM and TYAN, JJ.

HOUSE, Associate Justice.

In this case, the plaintiff claimed damages for injuries which she sustained when an automobile in which she was a passenger collided with a train at a crossing in New Haven. Both the operator of the automobile and the railroad were made defendants. Upon a trial to a jury, a verdict for $9000 was returned for the plaintiff against the operator of the automobile, Mrs. Margaret Conte, but the jury found the issues in favor of the defendant railroad. Mrs. Conte, hereinafter referred to as the defendant, has taken this appeal. No question is raised on the issue of liability, but three assignments of error relative to the issue of damages are pursued. These involve the court's charge to the jury on damages, a ruling admitting a hospital bill in evidence, and the claim that the court erred in failing to set aside the verdict as excessive. The latter ruling is tested by the evidence contained in the appendices to the briefs; Hook v. Dubuque, 153 Conn. 113, 114, 214 A.2d 376; while the charge and the ruling on evidence are tested by the claims of proof in the finding. State v. Vars, 154 Conn. 255, 258, 224 A.2d 744.

The allegations of damage specified in the complaint are notable for their brevity. The injuries, claimed to be 'extensive and painful,' are limited to the assertion in a paragraph of the complaint that '(h)er head was badly lacerated and bruised and her face was scarred, and said scars are disfiguring in nature, and as a proximate result thereof the plaintiff sustained embarrassment and humiliation and has suffered and will continue to suffer from painful headaches.' The next paragraph alleges that the plaintiff 'expended sums of money for medical care and attention, hospitalization etc.,' and this paragraph is followed by a claim for loss of wages as a result of the plaintiff's inability, owing to the accident, to resume her employment.

The defendant assigned as error the failure of the court to find that it had charged the jury in the following language: 'You are to compensate her for her injuries, and pain and suffering, any impairment of her mental and physical.' She also assigned mental and physical.' Shealso assigned as error the failure of the court to find that she took an exception on the ground that interference with the plaintiff's normal activities was not alleged in the complaint. Such a finding was expressly requested in the defendant's draft finding as provided by Practice Book § 614 and suggested Form No. 603. The appendix to the defendant's brief properly contains the portion of the charge questioned and the exception with appropriate reference to the pages of the transcript. The court did not make the requested finding although it did include in its finding two other portions of the charge concerning damages for injuries.

The unusual circumstance of a claim that the court failed to include in its finding that it had charged as a party asserts it in fact did charge has prompted us to consult the transcript as permitted by Practice Book § 721. It discloses that, as the finding states, the court did tell the jury: 'You are bound by the claims made in the pleadings as to the injuries and you must disregard any suffering which has come to her from any other incident if you find such exist.' This sentence was next followed in the charge by the very sentence which the court failed to find, despite the defendant's request. Obviously, the assignment of error is well taken, and the finding must be corrected to include the fact that the court did give the claimed charge on disability and that the defendant excepted on the ground that this element of damage was not alleged in the complaint.

Despite this correction, however, we find no merit in the defendant's claim that the court erred in giving this portion of its charge. Sparse as were the allegations of damage, they were sufficient to alert the defendant that the plaintiff claimed extensive and painful injuries from which she suffered and would continue to suffer painful headaches, that she was hospitalized and that for some time she was unable to resume her employment. In view of these allegations and the facts stated in the finding as to the extent of the injuries and their effect on the plaintiff's normal activities and employment, as well as the court's repeated cautions that the jury could allow the plaintiff damages only as they were justified by the pleadings and proof, the charge cannot be construed as an instruction permitting recovery for an element of damage...