Gimelli v. Waterbury Cadillac Co., Inc.

• Decision Date: 06 April 1929
• Citation: 145 A. 563,109 Conn. 722
• Parties: GIMELLI ET AL. v. WATERBURY CADILLAC CO., INC.
• Court: Connecticut Supreme Court

145 A. 563

109 Conn. 722

GIMELLI ET AL. v. WATERBURY CADILLAC CO., INC.

Supreme Court of Errors of Connecticut.

April 6, 1929

Appeal from Superior Court, New Haven County; Edward M. Yeomans Judge.

Action by Elena L. Gimelli, adminstratrix, and another, against the Waterbury Cadillac Company, Inc., to recover damages for the death of plaintiff Gimelli's intestate, alleged to have been caused by negligence of defendant, brought to the superior court and tried to the jury. Verdict and judgment for plaintiffs for $5,000, from which plaintiff Gimelli administratrix, appealed and filed her motion for new trial. Error, and new trial ordered.

Carroll C. Hincks and Michael J. Galullo, both of Waterbury, for appellant.

Walter E. Monagan, of Waterbury, for appellee Waterbury Cadillac Co.

Seth W. Baldwin, of New Haven, for appellee Connecticut Co.

Argued before WHEELER, C.J., and HAINES, HINMAN, BANKS, and BOOTH JJ.

WHEELER, C.J.

The plaintiff's decedent, while in the employ of the Connecticut Company on a highway in Waterbury, was struck and killed by a taxicab owned and operated by defendant. The plaintiff brings this action to recover damages for the decedent's death. It appears of record that, prior to the trial, the Connecticut Company moved the court that it be joined as a party plaintiff, alleging its liability to the dependents of the deceased for compensation on account of his decease. The court granted the motion. At the close of the plaintiff's case, the defendant moved a nonsuit as to the co-plaintiff, the Connecticut Company. The motion was heard in the absence of the jury. During the course of the hearing of the motion counsel for the plaintiff stipulated that compensation had been awarded on account of the death of the plaintiff's decedent against the Connecticut Company providing for weekly payments of $17.005 for 312 weeks and a burial fee of $200, which award counsel for the plaintiff conceded had priority out of any verdict rendered. The trial court denied the motion for a nonsuit against the Connecticut Company, and sustained plaintiff's request that everything concerning the compensation phase of the case should be excluded from the consideration of the jury. Pursuant to this ruling, the case was argued by counsel for each party without comment as to the presence of the Connecticut Company as a co-plaintiff, or as to the rights and obligations of the co-plaintiffs to each other, or as to any verdict for damages that might be rendered; nor did the court touch upon such rights and obligations in its charge.

The substance of paragraphs 8, 9, and 10 of the motion to correct the finding which the court refused to make should have been added to the finding, viz. The court submitted to the jury when it retired to consider the case the application of the Connecticut Company to be made a party and the order of the court making it a party. The application recited that the Connecticut Company had received a notice of a hearing in a claim for compensation against it on account of the death of plaintiff's decedent, and that it " may be obligated to pay an amount of compensation at present undetermined" for the same. The presence of the application in the jury room was not known to the plaintiff Gimelli or her counsel until after the verdict had been accepted and the jury dismissed. The plaintiff filed her motion for a new trial, based upon the presence of the application in the jury room. The court denied the motion, stating the ground of its decision as follows: " Well, I do think that the paper should not have gone to the jury as long as they were not considering that phase of the case in any way, but there is nothing in there to inform the jury whether compensation had been granted, or any intimation of the amount if any had been or would be granted, and it hardly seems to me that the jury would have inferred any substantial amount of payment coming from elsewhere to mitigate these damages, and I think the arguments of counsel and the charge were adequate to inform them, that if they brought in a verdict for the plaintiff it should be for just compensation for the injuries. I can't see that they were misled by anything in this paper, although I assume it would have been better if it had not been before them. Therefore, I will deny the motion."

Under our statute, the Connecticut Company was entitled to be reimbursed for the amount paid by it on account of the compensation award, which the judgment recites is of the present value of $5,004.83, from the verdict rendered in this case, which was $5,000; the court, after hearing, had rendered judgment for the Connecticut Company to recover of the defendant $5,000 damages.

Error is predicated upon the giving to the jury the application of the Connecticut Company to be made a party together with the ruling of the court admitting it as a party, in view of its ruling that the existence and amount of the compensation award should not be placed before the jury nor commented upon by counsel. Under our practice, all pleadings relevant to the issues being tried and all papers and documents admitted in evidence in the course of the trial are delivered to the jury when they take the case under consideration for decision. 1 Swift, Digest, § 775; State v. Tucker, 75 Conn. 201, 203, 52 A. 741. " It is the duty of counsel as well as of the court to ascertain what papers are delivered to the jury." State v. Tucker, supra; Flanders v. Davis, 19 N.H. 138, 149. It is not every paper which through mistake is handed the jury will require the setting aside of the verdict. Where counsel improperly commented in argument that the withdrawal of an attorney was because he had no defense, the court admonished the jury to disregard the comment and the fact of the withdrawal. In handing the papers to the jury, the written notice of this withdrawal was...