Jerz v. Humphrey

• Decision Date: 07 January 1971
• Citation: 160 Conn. 219,276 A.2d 884
• Court: Connecticut Supreme Court
• Parties: Edward JERZ v. David G. HUMPHREY.

Page 884

276 A.2d 884

160 Conn. 219

Edward JERZ v. David G. HUMPHREY.

Supreme Court of Connecticut.

Jan. 7, 1971.

Louis M. Winer, New Haven, for appellant (defendant).

Joseph M. Brandon, New Haven, with whom were William F. Tiernan, Jr., New Haven, and, on the brief, David E. FitzGerald, Jr., New Haven, for appellee (plaintiff).

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

THIM, Associate Justice.

The plaintiff brought this action to recover damages for injuries sustained by him when he was struck by an automobile operated by the defendant. A jury awarded the plaintiff $42,000 in damages and the plaintiff moved, under § 52-228b of the General Statutes, to set aside the verdict on the ground that it was inadequate. The court set the verdict aside and ordered a new trial limited to the question of damages, unless the defendant, within one week from the date of the order, and the plaintiff within one week thereafter, stipulated that judgment may enter for the plaintiff in the amount of $65,000. The defendant has appealed.

The defendant claims that the court should not have set aside the verdict as inadequate, that the court erred in ordering a new trial limited to the issue of damages, that the court in limiting the new trial to the issue of damages, violated the defendant's right to a trial by jury guaranteed by article first § 19 of the constitution of Connecticut, and that the court erred in denying the defendant's motion to implead the defendant's insurer as a third-party defendant.

The question presented by the defendant's first claim of error is whether the court abused its discretion in setting aside the verdict. Marin v. Silva, 156 Conn. 321, 323, 240 A.2d 909; Hook v. Dubuque, 153 Conn. 113, 114, 214 A.2d 376; Prosser v. Richman, 133 Conn. 253, 256, 50 A.2d 85. 'We need not restate the considerations underlying that question which are so clearly set forth in Desmarais v. Pinto, 147 Conn. 109, 110, 157 A.2d 596.' Marin v. Silva, supra. For reasons hereinafter stated, we conclude that the defendant's first claim is dispositive of the appeal.

The accident in which the plaintiff was injured occurred on February 13, 1962. His age, at the time of the trial, was fifty-five years. As a result of the accident he sustained fractures of both bones of the right leg, a comminuted compound fracture of both bones of the left leg, a venous vascular deficiency, with discloration, of both legs, and injury to the ulnar nerve of the right hand, a fracture of the tenth and eleventh ribs and miscellaneous internal injuries. The left leg was displaced with a resultant overriding of the large bone of at least one-half inch. During the year after the accident the plaintiff was twice hospitalized for over a month, and during one hospitalization he underwent a split skin graft operation on his left leg. For ten months he wore a hip-to-toe covering cast on both legs. During this one-year period he also made frequent trips to the hospital for physical therapy and new casts. As a result of his injuries the plaintiff was out of work for fifty-four weeks.

At the time of the trial the plaintiff's medical specials totaled approximately $4300 and he had lost approximately $5000 in net wages. The jury award was for $42,000. Subtracting the medical specials and the loss of wages from the total award, the plaintiff was left with a $32,700 award covering mental and physical pain and suffering, both past and future; loss of earning capacity; restriction of physical activities, both past and future; and a possible future operation to replace the split skin graft with a pedicle graft.

There is no precise mathematical formula by which a jury can arrive at an award of damages for pain and suffering, or loss of earning capacity. Nair v. Thaw, 156 Conn. 445, 453, 242 A.2d 757; Kekac v. New York, N.H. & H.R. Co., 149 Conn. 731, 732, 179 A.2d 832; Sadonis v. Govan,13 Conn. 668, 670, 46 A.2d 895; Nailor v. C. W. Blakeslee & Sons, Inc.,117 Conn. 241, 246, 167 A. 548. The determination is within the sound discretion of the trier. Davis v. P. Gambardella & Sons Cheese Corporation,147 Conn. 365, 373, 161 A.2d 583.

Concerning both past and future mental and physical pain and suffering, there was ample evidence to uphold a substantial verdict. However, the exact amount to be allotted for this type of damages in imprecise. Also, the jury may or may not have found that the pain and suffering would continue into the future. The record fails to disclose any evidence which would require the jury to find that the plaintiff would undergo either future physical pain and suffering or future mental suffering, although there was evidence on which they could have so found.

Loss of earning capacity is also an uncertain area for the assessment of damages. Before the accident the plaintiff was a working building superintendent, receiving an average gross wage of $100 per week. At the time of the trial the plaintiff was grossing $163 per week as a nonworking building superintendent. There was testimony that the increase was consonant with the general increase in wages between 1962 and 1969. In determining whether there is a loss of earning capacity '(t)he essential question is whether the plaintiff's capacity to earn is hurt.' Lashin v. Corcoran, 146 Conn. 512, 514, 152 A.2d 639, 641. (Emphasis added.) The key word is 'capacity'. Wages before and after an accident are only material as guides to the trier. Testimony by one expert, the defendant's, which the jury could have believed, assessed the plaintiff's disability after the accident at a 10 percent permanent disability of the right leg and a 20 percent disability of the left leg. The same expert testified that a person with a 20 percent disability to an extremity could not perform prolonged standing, walking or jumping, that he would be limited in his climbing and balance, and that he would certainly be limited in his general athletic endeavors. He further testified that a person with this type of disability would have trouble doing construction work where it is necessary to work on uneven ground, climb ladders or walk on steel girders, and further, a person with a 20 percent disability would be unable to do work that required him to stand for hours. Such a person would, however, 'be able to do work that did not require him to stand for hours and work that he could sit part of the time.' There was further testimony that the opportunity to obtain employment as a supervisory building superintendent was greater than it would be as a working superintendent. The plaintiff apparently has never been a construction worker, and such work is scarcely comparable to that of a building superintendent. The jury could reasonably have found that a working building superintendent falls within the category of jobs which do not require hours of standing and in which one can sit part of the time. They could have found that the plaintiff could continue as a working...