Intelisano v. Greenwell

• Decision Date: 26 July 1967
• Citation: Intelisano v. Greenwell, 155 Conn. 436, 232 A.2d 490 (Conn. 1967)
• Court: Connecticut Supreme Court
• Parties: , 34 A.L.R.3d 559 Catino J. INTELISANO v. Robert L. GREENWELL, Administrator (ESTATE of Allan B. GREENWELL). Robert L. GREENWELL, Administrator (ESTATE of Allan B. GREENWELL), et al. v. Catino J. INTELISANO.

Page 490

232 A.2d 490

155 Conn. 436, 34 A.L.R.3d 559

Catino J. INTELISANO v.Robert L. GREENWELL, Administrator (ESTATE of Allan B. GREENWELL).

Robert L. GREENWELL, Administrator (ESTATE of Allan B.

GREENWELL), et al. v.Catino J. INTELISANO.

Supreme Court of Connecticut.

July 26, 1967.

Allan R. Johnson, Bridgeport, with whom, on the brief, was Edward J. Holahan, Jr., Bridgeport, for appellant(plaintiff in the first case and defendant in the second case).

Noel R. Newman, Bridgeport, for appellee(defendant in the first case).

Alfred R. Belinkie, Bridgeport, with whom was Paul L. Blawie, Bridgeport, for appellees(plaintiffs in the second case).

Before KING C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

RYAN, Associate Justice.

These two cases, which were tried together before a jury, arose out of a two-car collision on the Merritt Parkway in the town of Trumbull.In the first case, the plaintiff, Catino J. Intelisano, alleged in his complaint that the collision and his resultant injuries and damages were caused by the negligence of the defendant's decedent in that (1) the decedent allowed his car to come to a stop and to remain stationary on the traveled portion of a heavily traveled road, even though he knew, or should have known, that in so doing he would endanger other persons lawfully using the highway; (2)he made no attempt to remove the car from the traveled portion of the highway, or to warn or signal approaching vehicles of the danger; and (3)he continued to operate his car when he knew that his gasoline supply was nearly exhausted, until it came to a stop.The answer denied these allegations of negligence and pleaded, by way of special defense, that Intelisano was contributorily negligent in that (1)he drove his car at an excessive rate of speed, having regard to the traffic, use, conditions of the highway and the visibility available to him; (2)he failed to keep his car under proper control; (3)he failed to keep a proper lookout; and (4), although he saw, or in the exercise of reasonable care should have seen, the decedent's car at a stop on the highway, he failed seasonably to apply his brakes or turn his vehicle so as to avoid a collision.In his reply, Intelisano denied the allegations of the special defense.

In the second action, the plaintiffRobert L. Greenwell, as administrator, alleged in his complaint that the injuries and death of his decedent were caused by the negligence of Intelisano, in that (1)he failed to keep his car under control; (2) his brakes were defective; (3)he failed to apply his brakes in time to avoid a collision; (4)he failed to keep a proper lookout for other vehicles on the highway; (5)he failed to maintain a safe distance within which he could bring his vehicle to a halt without injury to others; (6)he failed to change the course of his vehicle when he knew, or should have known, that there was danger of collision with another vehicle or, on seeing that the decedent was in a position from which he could not extricate himself and having the ability with the means at hand to avoid the collision without injury to himself or others, he failed to exercise reasonable care.In a second count in the same action, Robert L. Greenwell, individually, made the same allegations of negligence on the part of Intelisano and claimed damages to the automobile, owned by him and operated by the decedent.

In his answer to the complaint in the second action, Intelisano denied all the allegations of negligence and, in a special defense of contributory negligence, recited the same specifications of negligence on the part of the decedent as he had alleged in his complaint in the first action.Greenwell, as administrator and individually, filed a reply, denying the allegations of the special defense.

The jury found the issues for the defendant in the first case and for the plaintiffs in the second case.Upon the refusal of the court to set aside the verdicts, Intelisano, as the plaintiff in the first case and as the defendant in the second case, appealed from the judgments rendered therein.

Of the numerous assignments of error, five are pursued in Intelisano's brief.The first claim of error relates to the granting of the plaintiffs' motion in the second case to reopen the argument after the issues of liability and damages had been argued.The trial began with the first case, in which Attorney Allan R. Johnson represented Intelisano as the plaintiff and Attorney Noel R. Newman, together with Attorneys Paul L. Blawie and Alfred R. Belinkie, represented the defendant, Robert L. Greenwell, as administrator.In the second case, Blawie and Belinkie represented Greenwell as administrator and individually, and Johnson represented Intelisano as the defendant.The agreed order of argument was as follows: In the first case, Johnson would open and close, and Newman would make the defense argument.In the second case, Blawie and Belinkie would open and close, and Johnson would make the defense argument.The agreed order was followed in the first case.Blawie then made the opening argument in the second case.At this point, Johnson waived his argument.Blawie moved to reopen his argument on the grounds that he was entitled to a full hour and that, if the defendant had no intention of arguing, it should have been made known earlier so that counsel might have full time for argument.Johnson objected, but the court granted the motion.Johnson duly excepted on the ground that the sole purpose of the closing argument is to rebut the defendant's argument, and, since the defendant made no argument, his rights were prejudiced by the granting of the motion.At the conclusion of Blawie's argument, the court granted permission to Johnson to make his closing argument.This was declined, and no further arguments were made.

'The counsel in support * * * of the affirmative of an issue of fact, will be entitled to begin trial, and to open and close the argument.Where several issues are to be tried together, as to some of which the plaintiff, and as to others the defendant, has the affirmative, the court shall determine, in its discretion, which party shall open and close.'Practice Book§ 232;Dwyer v. Redmond, 100 Conn. 393, 398, 124 A. 7.'The trial court is invested with a large discretion with regard to the arguments of counsel, and while its action is subject to review and control, we can interfere only in those cases where the discretion was clearly exceeded or abused to the manifest injury of some party.James v. Bowen, 83 Conn. 702, 706, 78 A. 420.'Cascella v. Jay James Camera Shop, Inc., 147 Conn. 337, 342, 160 A.2d 899, 902.We need not pass on the validity of the reasons offered in support of the motion.There was no abuse of discretion by the trial court, particularly in view of the fact that defense counsel was given the opportunity by the court to argue at the conclusion of the plaintiff's second argument.

Intelisano assigns error in the instructions of the trial court to the jury on pain and suffering as an element of damage in the second case, when there was no evidence that the decedent was conscious at any time after suffering injury.In its instructions, the court, after telling the jury that a policeman testified that the decedent was unconscious when he saw him immediately after the accident and that the doctor said he was unconscious 'up till the time of his death', instructed the jury as follows: '(S)o then you will determine whether or not he was unconscious from the time of the accident till the time of the death, or for what length of time he was unconscious.You will recall the evidence on that, and if you find that * * * (the decedent) suffered any pain during that period as a result of his injury or death, and it was caused by the failure or negligence of the defendant Intelisano, then you would make due allowance for that.'The court also instructed the jury as follows: 'For any pain and suffering of the decedent before his death, if you find that there was any, he could recover upon the same basis which he might have recovered had he lived.'

The burden of proof on the issue of pain and suffering was on the decedent's administrator.As indicated by the finding, not only was there no evidence that the decedent suffered pain but the only evidence introduced was to the effect that the decedent was unconscious.'It is the duty of the court to submit to the jury no issue foreign to the facts in evidence.Fleischer v. Kregelstein, 150 Conn. 158, 160, 187 A.2d 241;Miles v. Sherman, 116 Conn. 678, 682, 166 A. 250.'Clements v. Goodkofsky, 153 Conn. 125, 127, 214 A.2d 680, 681.The trial court should have withdrawn from the jury's consideration any claim for pain and suffering.We note, however, that the decedent expired about fourteen hours after the accident and that the court, in its instructions, clearly stated to the jury the evidence concerning the decedent's unconscious state.'The whole problem of assessing damages for wrongful death, however, defies any precise mathematical computation.O'Connor v. Zavaritis, 95 Conn. 111, 117, 110 A. 878.Therefore, in a charge, theoretical lack of precision in the definition and application of any particular factor involved in the assessment of damages under our rule could seldom, in itself, constitute harmful error.'Floyd v. Fruit Industries, Inc., 144 Conn. 659, 675, 136 A.2d 918, 927, 63 A.L.R.2d 1378.Under all the circumstances of the case, and in view of the entire charge on the issue, we cannot say that there was harmful error in this instruction.Pareles v. McCarthy, 149 Conn. 238, 244, 178 A.2d 155.

The third claim of error urged by Intelisano is that the trial court erred in charging the jury on the doctrine of the last clear chance in the second case, when there was no reasonable basis in the evidence for applying that doctrine.Intelisano makes no claim that the doctrine was not properly pleaded or that the...