Marcil v. A. H. Merriman & Sons, Inc.

Decision Date20 December 1932
Citation115 Conn. 678,163 A. 411
PartiesMARCIL v. A. H. MERRIMAN & SONS, Inc., et al.
CourtConnecticut Supreme Court

Appeal from Superior Court, New Haven County; Frederick M. Peasley Judge.

Action by Arella Ramon Marcil against A. H. Merriman & Sons Incorporated, and Samuel Mlynar, to recover damages for personal injuries. Verdict was returned for plaintiff against the corporate defendant and in favor of the individual defendant. From an order setting aside the verdict against the corporate defendant, plaintiff appeals.

Appeal erased from docket.

Clayton L. Klein, of Waterbury, for appellant.

John F. McDonough, of Waterbury (Martin E. Gormley, of New Haven on the brief), for appellee A. H. Merriman & Sons, Inc.

De Lancey S. Pelgrift, of Hartford, for appellee Mlynar.

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

MALTBIE, C.J.

The plaintiff brought this action against A. H. Merriman & Sons, Incorporated, the owner of a truck being operated by its agent in the delivery of milk, and against Samuel Mlynar, the driver of an automobile in which the plaintiff was riding, to recover for injuries received by her in the collision of the two cars, claiming negligence in the operation of each. The jury returned a verdict against the company and in favor of Mlynar. The company moved to set the verdict aside as against the evidence and the trial court denied the motion. The issues raised on the trial had made it necessary for the court to charge the jury as to what constituted the traveled portion of a highway. After the motion to set the verdict aside had been denied, we handed down our decision in Kurtz v. Morse Oil Co., 114 Conn. 336, 158 A. 906, in which we defined the traveled portion of a highway. Thereupon the company moved that the decision upon the motion to set the verdict aside be reopened or vacated upon the ground that our decision in that case materially affected its rights. The trial court granted the motion and set the verdict aside as regards the company upon the ground that its charge was erroneous in the light of that decision. The plaintiff thereupon appealed upon two grounds, the setting aside of the verdict against the company and the failure of the trial court at the same time to set aside the verdict against Mlynar.

There was no such connection between the issues raised as to the liability of Mlynar and that of the company that the trial court might not properly set aside the verdict against the latter, without affecting that in favor of Mlynar. Chapin v. Babcock, 67 Conn. 255, 34 A. 1039; Sparrow v. Bromage, 83 Conn. 27, 29, 74 A. 1070, 27 L.R.A. (N. S.) 209, 19 Ann.Cas. 796; Donnarumma v. Korkin, 97 Conn. 223, 224, 116 A. 178. Had the plaintiff desired to raise the issue of the propriety of the verdict in favor of the latter, she should have moved to set it aside which she did not do.

The verdict against the company was set aside because of an error in the instructions of the trial court. A court has an inherent right to set aside a verdict upon such a ground. Munson v. Atwood, 108 Conn. 285, 288, 142 A. 737. A decision setting aside a verdict is not, however, a final judgment within the general appeal statute. General Statutes, § 5689; Banca Commerciale Italian Trust Co. v. Westchester Artistic Works, Inc., 108 Conn. 304, 307, 142 A. 838. The rights of the parties have not been finally foreclosed by that ruling; they are still in court; the case is still open; judgment may still be rendered in favor of either. Martin v. Sherwood, 74 Conn. 202, 203, 50 A. 564. General Statutes, § 5693, authorizes an appeal from the decision of a trial court granting a motion to set aside a verdict as against the evidence; this affords the only method known to our law by which an appeal can be taken from the setting aside of a verdict, State Bank & Trust Co. v. Connecticut General Life Ins. Co., 108 Conn. 680, 144 A. 782; it does not authorize an appeal from the setting aside of a verdict for any cause other than the lack of evidence to support it. For the distinction between the two situations there is sound ground. Where the issue is as to the sufficiency of the evidence to support the verdict, a certification of the evidence affords the court the necessary and only basis for determining the question; but where it is sought to present to this court for review claimed errors in a charge, rulings on evidence, and the like, a finding of facts is necessary, Munson v. Atwood, supra; and our procedure makes no provision for such a finding except upon an appeal from a final judgment.

In most of the cases where we have reviewed the action of a trial court upon a motion to set aside a verdict based upon some ground other than that of the insufficiency of the evidence to support it, the trial court has denied the motion judgment has been entered upon the verdict, and the appeal has been from the judgment. In Galligan v. Waterbury, 99 Conn. 256, 122 A. 119, we considered an appeal from the setting aside of a verdict because of certain misconduct occurring while...

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  • Mazzola v. Southern New England Telephone Co.
    • United States
    • Supreme Court of Connecticut
    • 19 Agosto 1975
    ......1051; Alabama Power Co. v. Alabama Electric Cooperative, Inc., 394 F.2d 672, 681-82 (5th Cir.) (opinion of Godbold, J., dissenting); ... with a quotation from the opinion of Chief Justice Maltbie in Marcil v. Merriman & Sons, Inc., 115 Conn. 678, 682, 163 A. 411, 412: 'There is ......
  • Lapinski v. Copacino.
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    ...the defendant does not raise them, we must take cognizance of them before we can go further with the case. Marcil v. A. H. Merriman & Sons, Inc., 115 Conn. 678, 682, 163 A. 411. Section 4(a) of the act makes it unlawful for any person to demand or receive rent in an area to which the act ap......
  • Walkinshaw v. Laffin
    • United States
    • Supreme Court of Connecticut
    • 4 Junio 1943
    ...Massachusetts, , 37 U.S. 657, 717, 9 L.Ed. 1233; Denton v. [Town of] Danbury, 48 Conn. 368, 372.' See, also, Marcil v. A. H. Merriman & Sons, Inc., 115 Conn. 678, 682, 163 A. 411. Mindful of that injunction and of the uncertainty created by the decision of the Superior Court as to the valid......
  • Dean v. Hershowitz
    • United States
    • Supreme Court of Connecticut
    • 21 Enero 1935
    ...These require an appeal, not from a judgment of the court, but from the decision upon the motion. Marcil v. A. H. Merriman & Sons, Inc., 115 Conn. 678, 163 A. 411. It is true that where an appeal is filed within the time allowed by the rules from the decision upon the motion and is accompan......
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