Delott v. Roraback

• Decision Date: 01 January 1980
• Citation: 426 A.2d 791,179 Conn. 406
• Court: Connecticut Supreme Court
• Parties: Linda DELOTT v. Loretta RORABACK.

Page 791

426 A.2d 791

179 Conn. 406

Linda DELOTT v. Loretta RORABACK.

Supreme Court of Connecticut.

Argued Oct. 11, 1979.

Decision Released Jan. 1, 1980.

John W. Sitarz, Hartford, for appellant (defendant).

Edward J. Daly, Jr., Hartford, with whom, on brief, was Christina G. Dunnell, Hartford, for appellee (plaintiff).

Before LOISELLE, BOGDANSKI, PETERS, HEALEY and PARSKEY, JJ.

PARSKEY, Associate Justice.

This action to recover damages for personal injuries was originally instituted in the Court of Common Pleas. On July 1, 1978, by virtue of the transfer of jurisdiction of the Court of Common Pleas to the Superior Court; General Statutes § 51-164s; it became a Superior Court case. The case was tried to the jury which returned a plaintiff's verdict. From the judgment rendered upon the verdict the defendant has appealed.

Before the beginning of the trial the court permitted the plaintiff to file an amendment to her complaint which substituted for her original claim of $15,000 damages a statement that the amount of money in controversy exceeds $7500. The latter claim was authorized both by General Statutes § 52-91 and Practice Book, 1978, § 131. The court, in allowing or denying an amendment to the complaint, has a broad discretion. Such a ruling will not be reversed in the absence of a clear showing of abuse of discretion. Phaneuf v. Commissioner of Motor Vehicles, 166 Conn. 449, 454, 352 A.2d 291 (1974). No such showing has been made here.

The defendant challenges the charge to the jury in three respects. First she claims that the court erred in its comment on her counsel's argument to the jury. Although the argument of counsel was not recorded it is undisputed that in his summation defense counsel stated that there was a "foul odor of greed" that permeated the case. Upon the conclusion of the final argument and in the absence of the jury, counsel for the plaintiff strenuously objected to those remarks and requested an appropriate instruction. The trial court observed that in its opinion the remarks were totally inappropriate and that the jury were going to be charged accordingly. Subsequently the court charged the jury on this subject as follows: "Now, I didn't find anything in the case that caused me to have any reservations. I didn't find any odor about this case, that Mr. Sitarz spoke about. I thought it seemed to me a fairly straightforward, standard kind of case. However, you're the ones who are going to evaluate all the evidence. It's not my project, or my position to evaluate, nor Mr. Sitarz'. He only looks at it from his point of view. You're going to look at it from the point of view of citizens on a jury, to determine whether you believe the people here, whether you believe the plaintiff, the doctors, and how you evaluate that."

Because liability was stipulated the only issue in the case pertained to damages. As a result of the impact the plaintiff was thrown forward and backward in the driver's seat of her car. She did not complain of injury at the scene of the accident but later at work felt achy within an hour or two and thereupon visited her family physician. The physician saw her on ten occasions over a period of four months and concluded, on the basis of her subjective complaints and his objective finding of muscle spasm, that the plaintiff had sustained a strain of her neck and of her lower and upper back. She was also seen on seven occasions over a period of two and a half years by an orthopedic specialist. This specialist concluded, on the basis of the plaintiff's subjective complaints of pain in conjunction with the swayback condition of the plaintiff's spine, that she had a 5 to 10 percent permanent partial disability of her lower back. The plaintiff testified that she was out of work for one week following the accident, that she returned to work half-time the second week and was able to resume work full-time the third week, although occasionally she had to leave work early due to pain. The defendant offered no medical evidence during the trial.

The thrust of the defense counsel's argument to the jury was that any claim for damages based exclusively or predominantly on subjective complaints of pain was probably fabricated and fraudulent. This strongly suggests to the jury that pain and suffering, unless supported by objective findings of medical experts, is not a proper element of damages in a personal injury case. There is no basis for such a suggestion. A plaintiff may recover damages in a personal injury action for pain and suffering even when such pain and suffering is evidenced exclusively by the plaintiff's subjective complaints. Hook v. Dubuque, 153 Conn. 113, 115, 214 A.2d 376 (1965). To suggest otherwise, especially in the manner done here, is not only an incorrect statement of the law but is also totally inappropriate. While counsel is free to comment to the jury about the nature of the complaints or even to suggest in a given case that the complaints may be exaggerated, it is inappropriate for counsel to suggest that a claim of injury is fabricated or fraudulent unless there is a clear basis in the evidence for such an allegation. There is no such basis here.

The credibility of a witness is for the jury to determine and such determination is not to be interfered with by the trial court in its charge. Enlund v. Buske, 160 Conn. 327, 330, 278 A.2d 815 (1971); Burke v. Fancher, 151 Conn. 640, 642, 201 A.2d 461 (1964); Quednau v. Langrish, 144 Conn. 706, 711, 137 A.2d 544 (1957). This does not mean, however, that where the situation warrants appropriate comment the trial judge must remain silent. "As we have often pointed out, a judge in our courts is not an umpire in a forensic encounter of advocates, but is a minister of justice. It is his duty, within the limitations imposed by the constitutional provision concerning trial by jury, to take every reasonable step to see that justice is done. It is not only his right but often his duty to comment upon the evidence." Heslin v. Malone, 116 Conn. 471, 477, 165 A. 594 (1933); McWilliams v. American Fidelity Co., 140 Conn. 572, 580, 102 A.2d 345 (1954); Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 501, 101 A.2d 500 (1953). Where a particular situation calls for a curative instruction the giving of such instruction will not be questioned so long as the trial court does not invade the province of the jury in doing so. Ladd v. Burdge, 132 Conn. 296, 298, 43 A.2d 752 (1945). Read in context, the trial court's instruction in this case was antiseptic without being corrosive.

The defendant next challenges the court's supplemental charge concerning loss of earning capacity with respect to the plaintiff's Tupperware business. The court instructed the jury that they were to regard any net profits from this business as merely evidence of earning capacity and that if they found there were no real net profits then that business should not be considered in terms of the plaintiff's earning capacity. The defendant's position is that the issue should not have been given to the jury because the plaintiff's income tax returns showed a net loss for the years 1973 and 1974 and, therefore, there was no basis in the evidence from which the jury could determine a loss of earning capacity with respect to the Tupperware business. We do not agree. The plaintiff testified that she started working for Tupperware on March 1973, some three months before the accident. At that time she demonstrated Tupperware products at private house parties approximately three times a week. After the accident she cut down to one party a week and eventually, in January 1975, she stopped completely because of her injuries. She testified that although she sustained losses for income tax purposes during the years in question, had she been able to demonstrate her wares as frequently as she did before the accident her business would have been profitable.

Loss of earning capacity is an appropriate element of compensable damages for personal injuries. Where the plaintiff is engaged in a business, the loss of net profits affords some basis for measuring such loss. Moiger v. Connecticut Ice Cream Co., 146 Conn. 551, 553-54, 152 A.2d 925 (1959); Ball v. Pardy Construction Co., 108 Conn. 549, 551, 143 A. 855 (1928). The evidence however, must be of such nature as to remove the issue from the realm of speculation. Mazzucco v. Krall Coal & Oil Co., 172 Conn. 355, 360, 374 A.2d 1047 (1977); Doeltz v. Longshore, Inc., 126 Conn. 597, 601, 13 A.2d 505 (1...