Johnson v. Connecticut Co.

• Decision Date: 13 June 1912
• Citation: 85 Conn. 438,83 A. 530
• Court: Connecticut Supreme Court
• Parties: JOHNSON v. CONNECTICUT CO.

83 A. 530

85 Conn. 438

JOHNSON v. CONNECTICUT CO.

Supreme Court of Errors of Connecticut.

June 13, 1912

Appeal from Superior Court, New Haven County; Marcus H. Holcomb Judge.

Action by Rosa Johnson against the Connecticut Company for personal injuries. From a judgment for plaintiff for $5,000, defendant appeals. Affirmed.

Joseph F. Berry, of New Haven, for appellant.

Ulysses G. Church, of Waterbury, for appellee.

WHEELER, J.

The plaintiff was a passenger on defendant's trolley car, and the verdict of the jury imports that she suffered the injuries complained of through an explosion caused by a defective controller, which the defendant in the exercise of its duty would have discovered and remedied; and that the plaintiff's physical injuries were severe, and resulting therefrom was a highly nervous condition of chronic neurasthenia or nervous exhaustion. The defendant complains that evidence of future apprehended injuries, which were merely possible, was received against its objection; and further, that the court refused to instruct the jury, in accordance with its request, that recovery could only be had for those injuries " which are reasonably certain to ensue" and for " apprehended future consequences of an injury" only those of which there is " such a degree of probability of such consequences as to amount to reasonable certainty."

Injuries in tort actions which are merely possible are speculative, and can furnish no basis for a recovery of damages. Pullen v. Boston Elevated Ry. Co., 208 Mass. 356, 94 N.E. 469. In some jurisdictions, in tort, the rule of damages includes prospective injury in those instances only where the apprehended consequences are such as in the ordinary course of nature are reasonably certain to ensue. C., M. & St. P. Ry. Co. v. Newsome, 154 F. 665, 83 C. C. A. 422; Williams v. Clarke County, 143 Iowa, 328, 120 N.W. 306; Hardy v. Milwaukee St. Ry., 89 Wis. 187, 61 N.W. 771.

" Certainty" is freedom from doubt, and if a plaintiff is required to prove that future apprehended consequences are reasonably free from doubt, he has imposed upon him a burden far beyond the ordinary requirement of proof in a civil action and approximating closely to the proof beyond a reasonable doubt of the criminal action. Other jurisdictions hold that all that is meant by the reasonably certain rule is that there must be such a degree of probability as amounts to a reasonable probability. Brininstool v. Mich. U. Ry. Co., 157 Mich. 172, 180, 121 N.W. 728; Watson, Personal Injuries, § 384; Booth, St. Rys. (2d Ed.) § 409. " Reasonable certainty" and " reasonable probability" bear no resemblance to each other, and judicial construction which brings them into apposite relation seems to us forced, perhaps, to save the appearance of a rule which violates a fundamental of the theory of evidence. This attempt has been aided by text-book writers who no doubt saw that the requirement of proof of future injuries to a reasonable certainty was an exception to the ordinary requirement of proof. " A presumption or a probability *** is an inference as to the existence or nonexistence of one fact from the existence or nonexistence of some other fact, founded in a previous experience of that connection." Hoyt v. Danbury, 69 Conn. 341, 348, 37 A. 1051. And when the trier has a reasonable belief of the probability of the existence of a fact material to the issue it is its duty to find it. Fay v. Reynolds, 60 Conn. 217, 220, 21 A. 418; Finken v. Elm City Brass Co., 73 Conn. 423, 47 A. 670; Hoyt v. Danbury, supra.

In tort the plaintiff must recover in a single action all of his damage. The consequences of an injury cannot be definitely predicted. The plaintiff should be permitted to prove those results which are likely to happen, that is, those which are reasonably probable, for that is but establishing results which under like circumstances generally come to pass. When a plaintiff has by a fair preponderance of the evidence satisfied the jury that future pain and suffering in consequence of his injury is reasonably, likely, or probable or to be expected, he should be compensated for these as well as for those which are certain to occur. Smedley v. Railway Co., 184 Pa. 620, 626, 39 A. 544; Amos v. Del. River Ferry Co., 228 Pa. 362, 369, 77 A. 12; Pullen v. Boston El. Ry. Co., 208 Mass. 356-358, 94 N.E. 469; Arkansas City v. Payne, 80 Kan. 353, 102 P. 781, 782; Lentz v. City of Dallas, 96 Tex. 258, 72 S.W. 59; Snook v. City of Anaconda, 26 Mont. 128, 66 P. 756; Norfolk Ry. & Lt. Co. v. Spratley, 103 Va. 379, 49 S.E. 502; Colby v. Inhabitants, 61 Me. 304, 306; Hale on damages (1896 Ed.) § 30. " In civil actions it is not necessary that the triers should be free from all reasonable doubt as to the proper conclusion to be drawn from the evidence." Hoyt v. Danbury, 69 Conn. 341, 348, 37 A. 1051. One end of the law is to end controversy, and to accomplish this courts may rest their judgment in a civil action upon reasonable probabilities. The law esteems the fact which in all reasonable likelihood will occur as existent. Much of the confusion in the authorities has come from assertion of the reasonable certainty rule in the case of Strohm v. N. Y., L. E. & W. R. R. Co., 96 N.Y. 304, 306. And while this case has been frequently followed by the inferior courts of New York and in Briggs v. N.Y. C. & H. R. Co., 177 N.Y. 62, 69 N.E. 223, 101 Am.St.Rep. 718, the Court of Appeals of New York has, in Cross v. City of Syracuse, 200 N.Y. 393, 94 N.E. 184, 21 Ann. Cas. 324, said: " The prevalent mistake in regard to that decision (Strohm v. Railroad) is the supposition that it forbade the introduction of any opinion evidence as to the probable existing condition due to injury unless the opinion could be pronounced with reasonable certainty. The Strohm Case in fact laid down no such rule." Griswold v. N.Y. C. & H. R. R. Co., 115 N.Y. 61. 64, 21 N.E. 726, 12 Am.St.Rep. 775; Feeney v. L. I. R., 116 N.Y. 375, 382, 22 N.E. 402, 5 L.R.A. 544. The defendant's criticism that the evidence of possible injuries should have been...