Johnson v. Franklin

• Decision Date: 07 November 1930
• Citation: 152 A. 64,112 Conn. 228
• Court: Connecticut Supreme Court
• Parties: JOHNSON v. FRANKLIN (two cases). FALASKO v. SAME.

152 A. 64

112 Conn. 228

JOHNSON v. FRANKLIN (two cases).

FALASKO v. SAME.

Supreme Court of Errors of Connecticut.

November 7, 1930

Appeal from Superior Court, Hartford County; Alfred E. Baldwin Judge.

Actions by three plaintiffs, Everett Johnson, Huldah Johnson, and Ida Falasko, against Walter G. Franklin, tried together, to recover damages for personal injuries alleged to have been caused them by the negligence of the defendant, and tried to the jury. Verdicts for the plaintiffs, and, from the denial of their motions to set aside the verdicts, the plaintiffs appeal.

Error and new trial ordered.

Samuel Rosenthal and George Marantz, both of Hartford, for appellants.

Ralph O. Wells, of Hartford, for appellee.

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

WHEELER, C.J.

On July 18, 1929, the plaintiffs were gratuitous guests in a car driven by Meade in a southerly direction on Narragansett avenue and approaching the intersection of this avenue with the state highway known as route No. 333, while the defendant was operating an automobile in an easterly direction on route 333 and approaching the same intersection. The cars collided within the intersection of these streets; as a consequence the plaintiffs suffered severe injuries. Verdicts were rendered for the plaintiffs: For Huldah Johnson, $573.25; for Everett Johnson, $240.57; and for Mrs. Falasko, $142.

In each case the plaintiff moved to set aside the verdict because of the inadequacy of the damages awarded; the court denied these motions. The verdicts in each case were for the exact amount of the special damages proved and with no allowance for the pain or the physical injuries suffered which were substantial. If the plaintiffs were entitled to recover damages for their injuries, the verdicts are manifestly inadequate and should have been set aside, for the same rule governs upon an application for a new trial in the case of an inadequate award as in the case of an excessive award. Black, Administrator, et al. v. Griggs, 74 Conn. 582, 51 A. 523; McCann v. McGuire, 83 Conn 445, 447, 76 A. 1003.

The trial court held that the verdicts were inadequate, but further held: " If upon a careful consideration of all of the evidence, it does not appear that the plaintiff is entitled to have a recovery for substantial damages, as we think the jury in this case may very reasonably have found, under all of the facts adduced, the court should not set the verdict aside, but rather treat an award of nominal damages for the plaintiff in the nature of a verdict for the defendant." Chiefly upon the ground that the court would have set the verdicts aside had they been for any substantial amounts, it refused to set them aside. The court was in error in treating or regarding these verdicts as nominal. They were substantial. " Nominal damages mean no damages. They exist only in name, and not in amount." Michael v. Curtis, 60 Conn. 363, 369, 22 A. 949, 951; Brennan v. Berlin Iron Bridge Co., 72 Conn. 386, 389, 44 A. 727. The defendant does not appeal, he prefers to pay the damages awarded rather than try the case again. Where the damages awarded are nominal and the verdict should have been against the prevailing party, the verdict will not be set aside. " A plaintiff, not entitled to recover at all, has no right for any reason to have a verdict for the defendant set aside. Garland v. C. & N. W., 8 Ill.App. 571; nor one in his own or her own favor, because the damages awarded are less than the pecuniary injury. Hubbard v. Mason City. 64 Iowa, 245 ." O'Malley v. Chicago City R. Co., 33 Ill.App. 354, 355; Fulmele v. Forrest, 4 Boyce (Del.). 155, 86 A. 733: Copeland v. Junkin, 198 Iowa, 530, 199 N.W. 363:Bangor, Oldtown & Milford R. Co. v. Smith. 49 Me. 9. 13, 77 Am.Dec. 246:Colbert v. Callaham, 132 Va. 475, 479, 112 S.E. 756; Pioneer Min. Co. v. Bannack Gold Min. Co., 60 Mont. 254, 266, 198 P. 748; Hubbard v. Town of Mason City, 64 Iowa, 245, 248. 20 N.W. 172; Haven v. Missouri R. Co., 155 Mo. 216, 230, 232, 55 S.W. 1035.

A frequently expressed reason for the rule is that the court should treat " an award of nominal damages for the plaintiff in the nature of a verdict for the defendant." A sounder reason is that a new trial should not be granted where the plaintiff ought not to prevail and the defendant does not complain of the verdict. The expense to the state, the burden put upon the court to retry the case, and the absence of evidence of actionable negligence removes the basis for the exercise of the court's discretion in granting to a plaintiff a new trial in a case where the damages awarded are nominal.

A like rule exists, and for like reasons, where the ground for setting aside a verdict is the inadequacy of damages and the case is one in which upon a new trial substantial damages should not be awarded. In Lambert v. Kamp, 101 Cal.App. 388, 281 P. 690, 691, the plaintiff obtained a verdict of $300 for the death of his intestate where the special damages amounted to $235. The plaintiff moved for a new trial on the ground of the inadequacy of the damages. On the appeal by the plaintiff from the denial of...