Damutz v. New England Household Co.
| Decision Date | 25 November 1935 |
| Docket Number | File 44760 |
| Citation | 3 Conn.Supp. 107 |
| Court | Connecticut Superior Court |
| Parties | JOHN DAMUTZ v. NEW ENGLAND HOUSEHOLD COMPANY, ET ALS. |
Present Hon. JOHN A. CORNELL, Judge.
R. T Mokrzynski, Attorney for the Plaintiff.
Campner Pouzzner & Hadden, Attorneys for the Defendant.
Motion to set aside jury verdict; liability of sheriff for infliction of injuries upon plaintiff's cow under attachment; damages; proximate cause; expert testimony.
The case was submitted to the jury, in effect as an action by plaintiff against defendants, James Geddes as Sheriff of the County of New Haven and his deputy, Adelbert C. Mautte.
The particular conduct upon the part of the defendant, Mautte which is alleged to have inflicted the asserted injuries upon the plaintiff's cows is set forth with particularity in the amended complaint.
This is concerned exclusively with the manner in which defendant Mautte, drove, handled and treated the cows from the time he took possession of them at plaintiff's farm until he delivered them into the care of the party who kept them while the attachment remained in effect.
It is during this restricted period that the damage is alleged to have been done. The amended complaint expressly negatives the occurrence of an injury attributable to defendants, to the cows thereafter by declaring in paragraph 10: " when the cows reached the place hereinbefore mentioned, as approximately seven miles distant from the plaintiff's home, said cows were lame, sore and their powers to give milk were destroyed."
The damage to the cows for which plaintiff is entitled to recover is, of course, such as proximately resulted from the acts alleged to have been the responsible producing agency of it-and, of course, none other than that.
The jury might justifiably have found that the defendant, Mautte violated the duty which the law imposed upon him in caring for the cows while taking them from plaintiff's place to that of their destination, and quite certainly did so.
Having done so, it was their duty to assess damages but the damages which they might properly assess were such only as there was evidence to show were the proximate result of the wrongful conduct alleged and found established by them.
The burden of proving what damages resulted from such lack of care, was plaintiff's. Barry v. Miller, 104 Conn. 362; Miller v. Conn. Co . 112 Conn. 476, 478; Bushnell v. Bushnell, 103 Conn. 583, 594; Madore v. New Departure Mfg. Co . 104 Conn. 709, 713; Gannon v. Kresge Co., 114 Conn. 36; Morse v. Consolidated Railway Co . 81 Conn. 395.
In discharging this burden he was required to submit evidence which would remove the conclusion to be reached from the sphere of mere conjecture into the realm of reasonable probability, or as it is said: " .... a probability so strong as to induce a belief in an impartial mind." Barry v. Miller, supra p. 355 and cases there cited.
What consequences might be found to directly flow from the injuries to the cows alleged in the amended complaint-or more pertinent to the instant cause, whether the particular consequence claimed by plaintiff resulted from such injuries-is a question the answer to which does not lie in the common knowledge of the average man.
One might readily conclude that if the cows were mistreated as plaintiff contends, some injurious consequences might reasonably be expected to ensue. But what these might probably be and their extent and duration __ and particularly, whether their natural effects would be practical destruction of the cow's milk producing capacities is a subject to be passed upon only by persons having special knowledge concerning it or by persons of ordinary experience aided by the opinion of persons having special knowledge of the subject. (Bates Ex. v. Carroll, 99 Conn. 677) in the absence of facts fairly warranting a conclusion.
Plaintiff, apparently recognizing this did submit the testimony of a doctor of veterinary. The opinion of the latter was contrary to the contentions of the plaintiff in vital particulars in that it stated that while the claimed mistreatment of the cows would be likely to produce digestive disturbances, the effect of such upsets would disappear within three or four days thereafter and normal milk production would return and that if the subnormal milk production remained at the point contended by plaintiff for the period which he maintained it did, than some other cause was more probably responsible for it.
It is quite true, as plaintiff's counsel contends that notwithstanding the fact that he is hardly in a position to impeach the credibility of his own witness (State v. Guilfoyle, 109 Conn. 124, 133) the jury was not bound to accept the latter's opinion and might wholly disregard it, as they apparently did.
If the plaintiff's experts' opinion be placed out of the case, then...
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