Filakosky v. Valente

• Decision Date: 23 May 1978
• Citation: 175 Conn. 192,397 A.2d 95
• Court: Connecticut Supreme Court
• Parties: Stephen J. FILAKOSKY et al. v. Michael A. VALENTE et al.

Page 95

397 A.2d 95

175 Conn. 192

Stephen J. FILAKOSKY et al. v. Michael A. VALENTE et al.

Supreme Court of Connecticut.

Argued March 7, 1978.

Decided May 23, 1978.

Albert R. Annunziata and John T. Grillo, New Haven, for appellant (plaintiff Margaret H. Filakosky).

George E. McGoldrick, New Haven, for appellees (defendants).

Before COTTER, LOISELLE, BOGDANSKI, LONGO and SPEZIALE, JJ.

COTTER, Associate Justice.

After a summary judgment as to liability was rendered in favor of the plaintiff Margaret H. Filakosky, upon a trial to a jury, she recovered a $3000 verdict for personal injuries allegedly sustained in a motor vehicle accident. The court denied a motion to set aside the verdict and she has appealed. ¹

The sole issue presented is whether the court, in its instructions to the jury, committed harmful error in inaccurately summarizing the medical testimony of the plaintiff's expert witness.

In her complaint, the plaintiff alleged, inter alia, that due to the defendants' negligence, she experienced an activation and exacerbation of a pre-existing arthritic condition of the cervical spine and a resulting permanent partial disability of the neck. As proof of these allegations, the plaintiff primarily relied upon the testimony of Dr. Peter Naiman, an orthopedic surgeon, who had examined and treated her both before and after the accident. Dr. Naiman testified on a number of occasions that, in his opinion, the motor vehicle accident was a "contributing cause" of the worsened osteoarthritic condition of the plaintiff's neck. He also testified that she had a 15 percent permanent partial disability of the cervical spine due to the automobile accident. The defendants' witness, Dr. Robert Margolis, who examined the plaintiff eleven months after the accident, found no permanency in the plaintiff's condition and expected none in the future.

In the course of its charge to the jury, the court referred to the testimony of both orthopedic surgeons. Although the court correctly stated that it was the opinion of the plaintiff's expert that she had a 15 percent permanent partial disability of the cervical spine, the court remarked on two occasions that it recalled the plaintiff's doctor as having said it was his opinion that the accident of July 22, 1970, contributed to this condition. The plaintiff claims that while Dr. Naiman testified that the auto accident was a "contributing cause" of the acceleration of her preexisting osteoarthritic neck condition, he also testified that the 15 percent disability of the cervical spine "was that component of her problem which was related to the accident." Thus, the plaintiff argues, it was erroneous for the court to indicate to the jury that, in the course of Dr. Naiman's testimony, he stated it was his opinion that the accident contributed to the plaintiff's permanent partial disability.

It is within the discretion of the court to make reasonable comments on or reference to the evidence; Tezack v. Fishman & Sons, Inc., 173 Conn. 183, 186, 377 A.2d 272; State v. Schoenbneelt, 171 Conn. 119, 124, 368 A.2d 117; Anderson & McPadden, Inc. v. Tunucci, 167 Conn. 584, 590, 356 A.2d 873; but in so doing, it should be careful to avoid any misstatement of the facts or evidence. Ladd v. Burdge, 132 Conn. 296, 298, 43 A.2d 752; 88 C.J.S. Trial § 272. In the present case, although it might appear that the court misstated the testimony of Dr. Naiman, this is not entirely clear from a reading of that portion of the transcript relied upon by the plaintiff. ²

"A charge must be read as a whole, and an inaccurate statement culled from it will not be regarded as reversible error unless it is reasonably probable that the jury could have been misled by it." Penna v. Esposito, 154 Conn. 212, 215, 224 A.2d 536, 538; Galligan v. Blais, 170 Conn. 73, 78, 364 A.2d 164; State v. Rose, 169 Conn. 683, 687, 363 A.2d 1077. " 'A charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case.' Amato v. Desenti, 117 Conn. 612, 617, 169 A. 611." Farlow v. Connecticut Co., 147 Conn. 644, 648, 166 A.2d 202, 203; Zommer v. Ventulett, 170 Conn. 490, 494, 365 A.2d 1059.

An examination of the charge, considered in its entirety, indicates that any possibly erroneous reference to the physician's testimony was not harmful to the plaintiff. The court accurately instructed the jury as to the applicable rules of law, and fairly apprised them of the claims of injury made by the plaintiff and of their duty to...