Hamill v. Neikind

• Citation: 171 Conn. 357,370 A.2d 959
• Court: Supreme Court of Connecticut
• Decision Date: 03 August 1976
• Parties: James HAMILL v. Margaret E. NEIKIND et al.

Page 959

370 A.2d 959

171 Conn. 357

James HAMILL v. Margaret E. NEIKIND et al.

Supreme Court of Connecticut.

Aug. 3, 1976.

Helen F. Krause, Trumbull, for appellant (plaintiff).

James J. Maher, Bridgeport, with whom, on the brief, were Brian P. Maher and Kevin J. Maher, Bridgeport, for appellees (defendants).

Before HOUSE, C.J.And COTTER, LOISELLE, BOGDANSKI and LONGO, JJ.

PER CURIAM.

The plaintiff, a passenger in the defendant Margaret E. Neikind's car, operated by her son with her general authority, brought this action against them for personal injury damages allegedly suffered in a motor vehicle accident. The jury returned a verdict in favor of the plaintiff for $2500. The plaintiff claims error in the court's denial of his motions to set aside the verdict as inadequate; in the denial of his motions for a new trial and in arrest of judgment because of the alleged 'misconduct of the jury'; in the court's charge to the jury; and in a ruling on evidence.

In reviewing the action of the trial court in denying the motion to set aside the verdict as inadequate, we find that it did not abuse its discretion since, on the evidence presented, the jury could fairly reach the verdict they did. Fabrizio v. Smith, 164 Conn. 385, 386, 321 A.2d 467; Birgel v. Heintz, 163 Conn. 23, 26, 301 A.2d 249; Rood v. Russo, 161 Conn. 1, 3, 283 A.2d 220. The main point at issue as to damages was whether a permanent hearing loss which the plaintiff evidenced at the time of trial was causally connected to the accident.

The jury heard conflicting evidence on this point; it was their province to weigh the evidence and determine the credibility of the witnesses and the effect of their testimony. While the plaintiff's expert witness, Dr. Frank Riccio, testified that the plaintiff's hearing loss was causally connected to the accident, the jury were not obligated to accept this opinion, particularly in view of Dr. Riccio's testimony on cross-examination. Hally v. Hospital of St. Raphael, 162 Conn. 352, 358-59, 294 A.2d 305. In reviewing the court's ruling we may consider the reasons stated in its memorandum of decision. Gary Excavating, Inc. v. North Haven, 164 Conn. 119, 121, 318 A.2d 84; see Peterson v. Sypher, 162 Conn. 616, 617, 295 A.2d 560. Excerpts from the court's denial of the motion clearly demonstrate the propriety of its conclusion that, in view of the facts found by the jury, the verdict was not inadequate. ¹

The plaintiff next claims error in the court's denial of his motion for a new trial on the ground of alleged prejudicial jury misconduct. ² The ground alleged involved a juror's attempt, with the sheriff's assistance, to ask the plaintiff's counsel a question prior to the opening of court on the last day of trial. The plaintiff claimed that counsel's refusal to answer the question, or to permit the sheriff to tell her its substance while the jury listened from the open jury room, prejudiced the jury against the plaintiff and resulted in an inadequate verdict. The plaintiff further alleged that the prejudicial effect of this incident was confirmed by a further incident after trial. ³ In reviewing the denial of this motion, we may assume, as did the court below, ⁴ that the incident occurred as alleged. The juror's attempt to question counsel during trial was clearly improper conduct. Tomlinson v. Town of Derby, 41 Conn. 268, but a new trial is not required unless the court finds that the incident generated 'prejudice . . . or at least the possibility of it' toward the plaintiff. Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 502, 101 A.2d 500 (judge's conduct); Pettibone v. Phelps, 13 Conn. 445. ⁵ Excerpts from the court's denial of the motion demonstrate its conviction that this was unlikely. ⁶

Because the court apparently ignored the occurrence of the post-trial incident in the belief that it could not properly be considered under the rule of Aillon v. State, 168 Conn. 541, 363 A.2d 49, we must review this action. In Aillon, this court ruled that jurors were competent to testify to the occurrence of incidents during trial or during their deliberations which might have affected the result of the trial, but could not testify as to the impact of such incidents on their verdict. The juror's remark after trial was relevant only as it tended to show prejudice during the deliberations, and the juror could not properly have testified to this at a hearing on the motion. Aillon v. State, supra. There was no error in its denial of the motion for a new trial.

The plaintiff claims error in the court's charge to the jury in two respects. We need not consider the plaintiff's contention that the court's charge on the issue of damages was misleading, confusing and contradictory since the plaintiff failed to except to this portion of the charge. Practice Book § 249; Maltbie, Conn.App.Proc. § 112; State v. Mallette, 153 Conn. 584, 587, 219 A.2d 447.

The plaintiff excepted to the charge as to the credibility of witnesses on the ground that his doctor was an expert in the particular field and that the jury 'can take into consideration, in evaluating the testimony of the medical experts offered, who was more qualified to give opinions concerning the disability claimed here.' The court did not err in declining to do so since such a charge was not warranted by the evidence and might have unfairly influenced the jury. DeCarufel v. Colonial Trust Co., 143 Conn. 18, 20, 118 A.2d 798. See Collens v. New Canaan Water Co., 155 Conn. 477, 485-86, 234 A.2d 825.

Finally, the plaintiff claims the court erred in admitting the testimony of the defendant's witness, Dr. David Clifford Harvey, on the ground that he was a general practitioner and not an expert on loss of hearing. The trial court has broad discretion in ruling on qualifications of expert witnesses. Oborski v. New Haven Gas Co., 151 Conn. 274, 280, 197 A.2d 73. 'It is the scope of the witness' knowledge and not the artificial classification by title that should govern the threshold question of admissibility.' Fitzmaurice v. Flynn, 167 Conn. 609, 618, 356 A.2d 887, 892. Dr. Harvey was a graduate of New York University Medical School, interned for two years at Kings County Hospital, was a practicing physician in the state of Connecticut and was employed at Sikorsky Aircraft for 19 years, during which time he gave physical examinations to employees which included reading audiograms. Such background, experience and training were sufficient to support the testimony which he gave during the trial. The admissibility of Dr. Harvey's testimony did not depend on whether he was a 'hearing specialist,' as claimed by the plaintiff, which might be a factor in weighing his testimony. However, the plaintiff chose not to question him on cross-examination. State v. Grayton, 163 Conn. 104, 111, 302 A.2d 246, cert. denied, 409 U.S. 1045, 93 S.Ct. 542, 34 L.Ed.2d 495; Wray v. Fairfield Amusement Co., 126 Conn. 221, 224, 10 A.2d 600.

There is no error.

In this opinion the other judges concurred.

1 In ruling from the bench the...