Maggay v. Nikitko

• Decision Date: 05 June 1934
• Court: Connecticut Supreme Court
• Parties: MAGGAY, v. NIKITKO.

173 A. 158

118 Conn. 699

MAGGAY, v. NIKITKO.

Supreme Court of Errors of Connecticut.

June 5, 1934

Appeal from Court of Common Pleas, New Haven County; Elbert B Hamlin, Acting Judge.

Action by Walter Maggay against Sergel Nikitko for damages for alienation of affections and committing adultery with the plaintiff's wife, brought to the court of common pleas in the judicial district of Waterbury and tried to a jury. Verdict for the plaintiff for $8,00, which upon motion the court set aside as excessive in default of a remittitur of $4,000, and the plaintiff appealed.

No error.

Michael V. Blansfield and Sidney S. Cassel, both of Waterbury, for appellant.

Patrick Healy, of Waterbury, for appellee.

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

PER CURIAM.

Our opinion on a previous appeal in this case appears in 117 Conn. 206, 167 A. 816. The only question now presented relates to the validity of the action of the court upon the motion to set aside the verdict of the jury as excessive.

This appeal is taken from the judgment and is erroneous in form since the assigned error relates only to the setting aside of the verdict. General Statutes, § § 5692, 5693; Rules for Appellate Procedure, § § 3 and 4 as amended. We entertain the appeal, however, as the assignment limiting its scope was filed within two weeks after the decision upon the motion to set the verdict aside. Rules for Appellate Procedure, supra; Schmidt v. Schaub, 115 Conn. 208, 161 A. 98; Marcil v. Merriman & Sons, Inc., 115 Conn. 678, 163 A. 411.

The obvious difficulty of fixing just compensation in this class of cases has resulted in divergent views in various jurisdictions as to the finality of the jury's verdict, and these are reflected in decisions cited by the appellant. The right and duty of the court, however, to condition the acceptance of the verdict of the jury, or to set it aside, in a proper case, is not an open question in this state. We have held it a correct, and often a desirable, action, within the properly exercised discretion of the court.

The evidence which was before the jury in the instant case fully justified a plaintiff's verdict. It also points unmistakably to a serious impairment of the normal conjugal affections between the plaintiff and his wife prior to the acts which are the basis of the present action. The plaintiff had left his wife on three occasions before finally ceasing...