Enlund v. Buske
| Decision Date | 20 January 1971 |
| Citation | 278 A.2d 815,160 Conn. 327 |
| Court | Connecticut Supreme Court |
| Parties | Marilyn ENLUND et al. v. John D. BUSKE. |
William W. Sprague, Hartford, with whom, on the brief, was William E. Fitz-Gerald, Hartford, for appellant (defendant).
Abram A. Washton, with whom was Robert I. Reardon, Jr., New London, for appellees (plaintiffs).
Before ALCORN, C.J., and HOUSE, THIM, RYAN and SHAPIRO, JJ.
This action arose out of an intersection collision involving two automobiles on the afternoon of February 10, 1965, in New London. Three plaintiffs brought this action: Kenneth Falconi, the operator of one vehicle; Grace Falconi, the owner of that vehicle; and Marilyn Enlund, a passenger in the Falconi vehicle. The defendant, John D. Buske, was the operator of the other vehicle involved in the collision. The plaintiffs Enlund and Kenneth Falconi claim damages for injuries and for pain and suffering, both present and future, and for past and future medical expenses. The plaintiff Kenneth Falconi, hereinafter referred to as the plaintiff, claimed further damages for loss of earning capacity. The plaintiff Grace Falconi sought to recover for the damage to her automobile. The defendant denied the plaintiffs' charge of negligence and alleged, by way of a special defense, that Kenneth Falconi, as operator-agent, and Grace Falconi, as ownerprincipal, were contributorily negligent.
The case was tried to a jury and verdicts were returned in favor of all three plaintiffs. The defendant has appealed to this court from the judgment rendered on the verdicts. He has assigned error in the denial of his motion to set the verdict aside, in the court's charge to the jury and in the finding. During the argument on this appeal the defendant conceded that the plaintiff passenger's case was not involved in the appeal. We find that the defendant's assignment of error concerning the charge to the jury on the credibility of the witnesses is dispositive of this appeal.
The plaintiff offered evidence to prove, and claimed to have proved, that following the accident his preexisting psoriasis condition, which had been quiescent, was reactivated. This reactivation was caused by the accident. As a result of the psoriasis condition the plaintiff was too embarrassed to look for work, and when he did look for work, his appearance, due to the psoriasis, prevented him from finding work. After the accident the plaintiff received some unemployment compensation.
The defendant offered evidence to prove, and claimed to have proved, that, following the accident, the plaintiff received unemployment compensation, and that unemployment compensation is not available to a person who is disabled and thus unable to work. Also, after the accident, the plaintiff never filed a notice with the unemployment compensation commission stating that he was disabled. Further, the plaintiff claimed, for the purpose of obtaining unemployment compensation, that he was able and available for work, while, at the same time, he claims, for the purpose of obtaining damages for loss of earning capacity, that he was disabled and not available for work. The defendant claims that this evidence placed the plaintiff's credibility in question.
The court charged the jury that the credibility of witnesses was a matter solely within their judgment. As far as that charge went, it was proper, and no error has been assigned to it. Following that, however, the court related to the jury the allegations of the special defense as to the plaintiff's contributory negligence, eliminated several from the jury's consideration, told them to consider those which they felt they should consider and told them, as to liability, 'I think the case is fairly susceptible to an early judgment in that respect.' The court then turned to the issue of damages and charged the jury, concerning the plaintiff's unemployment compensation, that those payments did not mitigate damages, but it later changed that charge to leave the question with the jury. Finally, the court charged the jury: The defendant took exception to these portions of the charge, which resulted in the noted change in the charge on unemployment compensation, but not new charge resulted on the issue of credibility.
The defendant contends, in essence, that the charge took the issue of Kenneth Falconi's credibility from the jury. He claims that the charge concerning an early judgment implied to the jury that there were no difficult questions, whereas that of credibility, which was vital, might well have been difficult. Further, the court treated the unemployment compensation issue as one solely concerning mitigation of damages. And finally, by charging that all parties had been 'truthful' the court had, in effect, charged that there was no issue of credibility.
The credibility of a witness is for the jury to determine. Douglass v. 95 Pearl Street Corporation, 157 Conn. 73, 81, 245 A.2d 129; Tucker v. Halay, 156 Conn. 633, 634, 242 A.2d 730; Desmarais v. Pinto, 147 Conn. 109, 110, 157 A.2d 596; Henry v. Bacon, 143 Conn. 648, 651, 124 A.2d 913; 53 Am.Jur., Trial, 473. Such a jury determination may not be interefered with by the trial judge in his charge. Burke v. Fancher, 151 Conn. 640, 642, 201 A.2d 461; Quednau v. Langrish, 144 Conn. 706, 711, 137 A.2d 544; see 53 Am.Jur., Trial, 461. Further, '(t)he charge ought not to contain contradictory statements of the law, or statements which might be so construed'. Pratt, Read & Co. v. New York, N.H. & H.R. Co., 102 Conn. 735, 740, 130 A. 102, 104; see Bailey v. Bruneau's Truck Service, Inc.,149 Conn. 46, 57, 175 A.2d 372; Borsoi v. Sparico, 141 Conn. 366, 371, 106 A.2d 170.
While the court's comments on the honesty of the witnesses may not have been 'statements of the law', they may well have been so construed by the jury. The court has wide discretion in its charge and its comments, but those comments must be reasonable and fair. Ladd v. Burdge, 132 Conn. 296, 298, 43 A.2d 752. They must not mislead the jury. Maltbie, Conn.App.Proc. § 99. 'The test is whether the charge, as a whole, fairly presents the case to the jury so that no injustice will result.' Danehy v. Metz, 140 Conn. 376, 379, 100 A.2d 843, 845; Antz v. Coppolo, 137 Conn. 69, 72, 75 A.2d...
To continue reading
Request your trial
-
State v. Sivri
...told the jury how to decide disputed issues of fact and thus exceeded its power to comment on the evidence.' " Enlund v. Buske, 160 Conn. 327, 332, 278 A.2d 815 (1971). He also contends that the trial court failed to instruct the jury in a neutral and detached After reviewing the record, we......
-
Novella v. Hartford Acc. & Indem. Co.
...70 A. 1031.' Castaldo v. D'Eramo, 140 Conn. 88, 94-95, 98 A.2d 664, 667. Viewing the charge as a whole, as we must do; Enlund v. Buske, 160 Conn. 327, 331, 278 A.2d 815, Hanken v. Buckley Bros., Inc., 159 Conn. 438, 441, 270 A.2d 556; it is apparent that the charge adequately instructed the......
-
Robinson v. Faulkner
...is whether the charge considered as a whole fairly presents the case to the jury so that no injustice will result. Enlund v. Buske, 160 Conn. 327, 331, 278 A.2d 815; Danehy v. Metz, 140 Conn. 376, 379, 100 A.2d 843. The supplemental charge taken with the original charge would not have confu......
-
State v. Echols
...are not improper merely because they tend to point out strengths, weaknesses, or difficulties of a particular case. Enlund v. Buske, 160 Conn. 327, 331, 278 A.2d 815; Quednau v. Langrish, 144 Conn. 706, 710, 137 A.2d 544. The court must refrain, however, from making improper remarks which a......