Fritz v. Madow
| Decision Date | 27 November 1979 |
| Citation | 426 A.2d 268,179 Conn. 269 |
| Court | Connecticut Supreme Court |
| Parties | H. William FRITZ, Administrator (ESTATE OF Daniel H. FRITZ) v. Dorothy MADOW et al. |
Thomas L. Brayton, Waterbury, for the appellants (defendants Richard F. Schneider et al.)
H. James Stedronsky, Canaan, for the appellee (plaintiff).
Before COTTER, C. J., and LOISELLE, BOGDANSKI, PETERS and HEALEY, JJ.
The plaintiff administrator brought this action against the defendants Dorothy and Jamie Madow, Richard F. Schneider and Allied Building Contractors, Inc., to recover damages for the death of his seventeen-year-old son resulting from a two car collision. The decedent was a passenger in the car driven by the defendant Jamie Madow. The owners and operators of both vehicles admitted liability and the case was submitted to the jury as a hearing in damages.
During jury selection, the Madows paid the plaintiff $40,000 for a covenant not to sue and withdrew from the case. At the conclusion of the trial the jury returned a verdict of $25,000 against the defendants Schneider and Allied Building Contractors. The defendants then moved to "complete the record." The object of that motion was to have the court offset the jury verdict by the $40,000 paid to the plaintiff administrator for the covenant not to sue. Such a procedure is authorized by § 52-216a of the General Statutes. 1 Pursuant to the express language of the statute, the trial court may consider payments made to the plaintiff by joint tortfeasors in determining the adequacy of the jury verdict and in making any appropriate adjustments thereto. Had the motion been granted, the defendants Schneider and Allied Building Contractors, although admitting liability, would have paid nothing. The trial court denied the motion and from that denial the defendants took this appeal.
The sole issue on appeal is whether a payment by one tortfeasor for a covenant not to sue that is in excess of the verdict subsequently returned against a joint tortfeasor necessarily entitles the joint tortfeasor to a reduction or erasure of the verdict as to damages.
The defendants claim first that the word "may" as used in § 52-216a must be interpreted as mandatory rather than permissive. We do not agree.
Section 1-1 of the General Statutes provides that in construing statutes, words and phrases are to be given their ordinary meaning. The court's function, therefore, is to determine the fair meaning of what the legislature said, not what it meant to say. It is well settled that the plain and unambiguous terms of a statute govern its construction rather than speculation as to some policy or equities claimed to be embodied therein. State ex rel. Kirby v. Board of Fire Commissioners, 129 Conn. 419, 424, 29 A.2d 452 (1942).
The use of the word "may" in General Statutes § 52-216a is a clear indication that a discretionary rather than a mandatory duty was intended. Shulman v. Zoning Board of Appeals, 154 Conn. 426, 428, 226 A.2d 380 (1967). Moreover, the fact that this statute uses "shall" three times and "may" once lends further support to the contention that the legislature intended to distinguish those words according to their ordinary meanings. Ibid.
The defendants also contend that the court must declare a verdict satisfied when the payment in settlement by one joint tortfeasor exceeds the jury verdict against the other joint tortfeasor. Citing Dwy v. Connecticut Co., 89 Conn. 74, 95, 92 A. 883 (1915), they argue that when a right of action has once been satisfied it ceases to exist; that if part satisfaction has already been obtained, further recovery can only be had of a sum sufficient to accomplish full satisfaction; and that anything received on account of the injuries inures to the benefit of all and operates as payment pro tanto. More specifically, they claim that because the jury verdict was for less than that already received by the plaintiff for the covenant not to sue, the court should have considered the verdict and judgment satisfied.
While it is true that the jury determines damages, it is also true that the court reviews damages to determine whether they are adequate. In this case, it is apparent that the verdict returned by the jury was such that the court refused to deduct from it any portion of the payment for the covenant on the ground that the total of the two amounts did not constitute an excessive recovery.
Prior to the enactment of General Statutes § 52-216a the jury was instructed that a payment received in consideration for the plaintiff's covenant not to sue was an item to be considered by them in mitigation of the amount of damages. Bonczkiewicz v. Merberg Wrecking Corporation, 148 Conn. 573, 578, 172 A.2d 917 (1961). In practice, however, the disclosure of such covenants to the jury was often more prejudicial than probative, and was of questionable utility since the mathematical adjustment of the verdict could readily be effected by the court alone. By placing the adjustment of the jury verdict solely within the sound discretion of the trial court, the legislature has not only eliminated the possible prejudicial effect of disclosure, but has reduced the possibility that an admittedly liable joint tortfeasor will escape payment. The adjustment authorized by General Statutes § 52-216a should also reduce the number of cases in which the trial court orders the jury to reconsider its verdict, or sets aside the verdict as being inadequate or excessive and orders a new trial. See Deedy v. Marsden, 172 Conn. 568, 570, 375 A.2d 1032 (1977).
No claim has been made by the defendants that the court abused its discretion in refusing to set off the amount of the jury verdict by the amount received in consideration for the covenant not to sue.
There is no error.
In this opinion COTTER, C. J., and PETERS and HEALEY, JJ., concurred.
I cannot agree with the majority opinion. The record contains no finding to determine the reason for the court's denial of the defendants' motions to set aside the verdict and to complete the record. A memorandum of decision is in the record. Where there is no finding, we must "consult the memorandum of decision to ascertain the conclusions on which the trial court based its judgment." Goldberg v. Zoning Commission, 173 Conn. 23, 25, 376 A.2d 385, 387 (1977); Anonymous v. Norton, 168 Conn. 421, 423, 362 A.2d 532 (1975). Even where a finding is ambiguous, the court must resort to the memorandum of decision. Bridgeport Pipe Engineering Co. v. DeMatteo Construction Co., 159 Conn. 242, 247, 268 A.2d 391 (1970); Kriedel v. Krampitz, 137 Conn. 532, 535, 79 A.2d 181 (1951).
The plaintiff filed a motion to set aside the $25,000 verdict as inadequate. In its memorandum of decision, the court said: ...
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Seals v. Hickey
...claims that the trial court erred: (1) in holding that General Statutes § 52-216a, 6 as interpreted by this court in Fritz v. Madow, 179 Conn. 269, 426 A.2d 268 (1979), is unconstitutional under the void for vagueness doctrine of the due process clause; and (2) in holding that the word "may......
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