Gesualdi v. Conn. Co.

• Decision Date: 21 February 1945
• Citation: 41 A.2d 771,131 Conn. 622
• Court: Connecticut Supreme Court
• Parties: GESUALDI v. CONNECTICUT CO.

131 Conn. 622

41 A.2d 771

GESUALDI

v.CONNECTICUT CO.

Supreme Court of Errors of Connecticut.

Feb. 21, 1945.

Appeal from Superior Court, Hartford County; King, Judge.

Action by Carmela Gesualdi against The Connecticut Company to recover damages for personal injuries sustained by plaintiff in a fall as she was about to enter a bus operated by defendant. Verdict for plaintiff which the court set aside on defendant's motion but denied a motion for judgment for defendant notwithstanding the verdict, and defendant appeals, and plaintiff filed a plea in abatement to the appeal to which defendant demurred.

Demurrer sustained, and no error.

James W. Carpenter, of Hartford, for appellant.

Morton E. Cole, of Hartford, for appellee.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

MALTBIE, Chief Justice.

The plaintiff brought this action to recover damages for injuries resulting from a fall as she was about to enter a bus operated by the defendant. The jury returned a general verdict in her favor, but, in connection with it, answered two interrogatories: to one, asking whether the plaintiff fell on the icy highway before she had placed her foot on the step of the bus, they answered ‘No’; and to the other, asking whether she fell as a result of her right foot slipping on the step of the bus at the time when her left foot had already been lifted from the highway, they answered ‘Yes.’ The defendant made a motion in the first paragraph of which it asked to have the general verdict set aside and in the second paragraph of which it sought the entry of judgment in its favor upon the basis of the jury's answers to the second interrogatory, notwithstanding the general verdict. The trial court granted the motion in so far as it sought to have the general verdict set aside, but denied the other relief asked. From its memorandum of decision it appears that it set the verdict aside because of a fatal variance between the allegations of the complaint as to the cause of the plaintiff's fall and proof that it was due to her slipping on the step of the bus. It later made a finding of the circumstances which led it to refuse to enter a verdict in the defendant's favor because of the answers to the interrogatories. The trial court concluded, as appears from this finding, that linguistic difficulties on the part of the plaintiff as a witness and a consideration of other testimony offered would make it improper and unfair to her to direct judgment in the defendant's favor upon the evidence as offered, and also that the court had no power to direct the entry of such a judgment, either under our decision in the case of Belchak v. New York, N. H. & H. R. Co., 119 Conn. 630, 179 A. 95, or under those in Fay v. Hartford & Springfield Street Ry. Co., 81 Conn. 578, 579, 71 A. 734; Koops v. Gregg, 130 Conn. 185, 195, 32 A.2d 653; and Edwards v. Grace Hospital Society, 130 Conn. 568, 575, 36 A.2d 273. The defendant has appealed, and the refusal of the trial court to enter judgment in its favor is the sole error presented to us.

If the trial court was correct in its last conclusion above stated, there would be no occasion to consider the case further. It apparently treated the four cases it cited as presenting the single question whether, under our present practice, a judgment non obstante veredicto could in any event be entered. Such judgments were early given recognition by us. Fitch v. Scot, 1 Root 351; Church v. Tomlinson, 2 Conn. 134, note. Two other early cases outlined the limits within which such judgments could properly be entered. In Hill v. Blackstone, 2 Conn. 247, the plaintiff, after the rendition of a verdict for the defendant, moved for judgment non obstante veredicto. Swift, C. J., pointed out (page 250 of 2 Conn.) that the defendant had not confessed judgment, but at most had failed to plead sufficient facts to constitute a defense, and he said: ‘This defect might have been supplied by a new plea. The plaintiff, therefore, could not be entitled to judgment on his motion. The proper way would have been to have moved in arrest; and the court, if they had considered the rejoinder insufficient, and the issue immaterial, could have set aside the verdict, and have awarded a repleader.’ On the other hand, in Bliss v. Bange, 6 Conn. 78, the plaintiff brought an action of trespass, based upon a violation of the statute against forcible entry and detainer; the defendant admitted the acts of trespass alleged but pleaded in defense that he held freehold title to the lands; a verdict was rendered in his favor; but the Supreme Court advised the trial court to render judgment for the plaintiff, as a freehold title in the defendant could not as matter of law be a defense.

In Fay v. Hartford & Springfield Street Ry. Co., 81 Conn. 330, 71 A. 364, a jury rendered a verdict for the plaintiff to recover damages for a personal injury; upon appeal by the defendant, we held that upon the evidence the plaintiff was guilty of negligence as matter of law, that the trial court should have directed a verdict in the defendant's favor or should have granted the defendant's motion to set the verdict aside; and we ordered a new trial. We were later asked to amend the rescript so that it would direct the trial court to enter judgment for the defendant non obstante veredicto. We refused to do this. Fay v. Hartford & Springfield Street Ry. Co., 81 Conn. 578, 71 A. 734. There is undoubtedly language in the opinion of the last case which, taken, by itself, would indicate that in no event could a judgment non obstante veredicto be entered. The substance of the decision was, however, that, as the plaintiff could not recover because the evidence failed to establish an essential element in her case, she should not be deprived of an opportunity by a retrial to secure judgment either on the pleadings as they stood or as they might be amended. That we did not mean to hold that a judgment non obstante veredicto could in no event be rendered appears from other cases we later decided. In Streitweiser v. Lightbourn, 87 Conn. 527, 89 A. 186, and Harris v. Sissa, 91 Conn. 249, 251, 99 A. 580, we held that such judgments could not be rendered, not because they were not recognized in our procedure, but because such a judgment can only be entered where required by the application of legal principles to the facts pleaded; and in the second case it was specifically held that inconsistencies between the verdict and the evidence was not a sufficient ground. In Lamenza v. Shelton, 96 Conn. 403, 114 A. 96, on an appeal from a judgment upon a writ of error in summary process, we held that the trial court properly directed the rendition of a judgment non obstante veredicto for the plaintiff where, under the terms of the lease in question, the defendants could never establish their claimed right to a renewal of it. In Ruocco v. Logiocco, 104 Conn. 585, 134 A. 73, we remanded the case with direction to enter a judgment non obstante veredicto for the defendant where the plaintiff's right to recover was precluded by a previous judgment against him upon the same issues. In each of the cases of Koops v. Gregg, supra, and Edwards v. Grace Hospital Society, supra, we held that the trial court should have set a plaintiff's verdict aside, but we refused to direct the entry of a judgment for the defendant where there had been merely a failure to prove a right to recover under the allegations of the complaint.

A reading of the opinions in these cases indicates some inconsistency in our decisions, but they lead to this statement of our conclusions: A judgment non obstante veredicto may be rendered where the application of legal principles to facts conclusively established by pleadings or judicially admitted shows that the party against whom the verdict was rendered is entitled to judgment; it cannot properly be entered where the person in whose favor the general verdict was rendered is not entitled to judgment upon it because of a failure of proof at the trial which may be remedied at a new trial; and, even though upon the pleadings as they stand judgment might be entered, the trial court may in its discretion refuse to direct it, if it concludes that, in justice to the party against whom it is claimed, a further opportunity should be afforded him upon repleading to establish his case. In the cases of Streitweiser v. Lightbourn, supra, and Harris v. Sissa, supra, we referred to the fact that by the English common law a judgment non obstante veredicto could not be rendered for a defendant. Whatever the reason therefor, this restriction upon the rendition of such a judgment has been quite generally repudiated in this country by statutes or decisions of the courts. Tarbell v. Grand Trunk Ry. Co., 94 Vt. 449, 111 A. 567; Plunkett v. Detroit Electric Ry. Co., 140 Mich. 299, 103 N.W. 620; Muench v. Heinemann, 119 Wis. 441, 449, 96 N.W. 800; Shives v. Eno Cotton Mills, 151 N.C. 290, 66 S.E. 141; 1 Freeman, Judgments,...