Newton v. Barnett

• Decision Date: 28 April 1959
• Citation: 150 A.2d 821,146 Conn. 344
• Court: Connecticut Supreme Court
• Parties: Anna M. NEWTON, Administratrix (ESTATE OF Evelyn M. ROSER), et al. v. John K. BARNETT et al. Supreme Court of Errors of Connecticut

Page 821

150 A.2d 821

146 Conn. 344

Anna M. NEWTON, Administratrix (ESTATE OF Evelyn M. ROSER), et al. v. John K. BARNETT et al.

Supreme Court of Errors of Connecticut.

April 28, 1959.

DeLancey Pelgrift, Hartford, with whom was George D. Stoughton, Hartford, for appellants (defendants).

Joseph P. Cooney, Hartford, with whom were Henry F. Cooney, Hartford, and, on the brief, John F. Scully, Hartford, for appellee (plaintiff John W. Roser).

Before DALY, C. J., and BALDWIN, KING, MURPHY and MELLITZ, JJ.

DALY, Chief Justice.

In this negligence action the jury returned a verdict for the named plaintiff to recover $35,100 damages from the defendants and for the other plaintiff, John W. Roser, to recover $61,000. The trial court denied the defendants' motion to set aside the verdict 'in favor of John W. Roser.' The defendants have appealed only from the judgment for him. They claim that the court erred in denying their motion, in its charge to the jury and in its determination that certain matters in the charge and the exceptions to it involved moot questions because they were concerned solely with damages for the wrongful death of the named plaintiff's decedent and those damages have been paid. The defendants have abandoned their remaining assignment of error. No appeal was taken from the judgment for the named plaintiff.

The existence of an actual controversy is an essential requisite to appellate jurisdiction. It is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22. As no practical benefit could follow from our determining whether the court erred in charging the jury on the question of damages for the wrongful death of Evelyn M. Roser, it is not incumbent upon us to make that determination. Rollins v. Holcomb, 122 Conn. 664, 666, 190 A. 260. The trial court did not err in concluding that, since those damages have been paid, the question whether it erred in the charge as to them is moot. We do not consider the defendants' claim that the court erred in charging the jury on the law of damages as it relates to the plaintiff John W. Roser, since the matter was not covered by an exception to the charge. Crowder v. Zion Baptist Church, Inc., 143 Conn. 90, 98, 119 A.2d 736; Practice Book, § 153.

The defendants maintain that the award of $61,000 to John W. Roser, hereinafter called the plaintiff, is excessive and that therefore the court erred in denying their motion to set aside the verdict in his favor. The plaintiff offered evidence to prove and claimed to have proved the following facts: At the time he was injured on April 14, 1957, he was fifty-six years of age, had a life expectancy of 18.2 years, and was active and in good health. On admission to the hospital on that date, he was in severe pain which became increasingly acute in the area of the upper anterior left chest, where there was considerable swelling and ecchymosis. He sustained a grossly swollen and painful comminuted fracture of the left os calcis, which was completely shattered, with marked involvement of the subtalar joint, and the heel was pushed upward out of normal position. He complained of pain in the area of the left hip, where there was ecchymosis and swelling immediately below the great trochanter. There was tenderness in the cervical spine, and a deep laceration five centimeters in length on the lateral aspect of the left knee. Further painful injuries were sustained to the left chest in the region of the costochondral junction of the upper three or four ribs, where a snapping noise could be heard on inspiration, with palpable instability of the ribs noted. The plaintiff sustained a severe injury to his right shoulder, and there were multiple contusions and abrasions over the body generally. X-rays disclosed an undisplaced fracture of the seventh rib on the left. From the moment of the collision, the plaintiff endured great difficulty and pain if trying to breathe.

The increasing severity of the chest pain and the breathing difficulty necessitated performance of intercostal nerve blocks on April 16 by injection of novocain between the nerves on the undersurface of the ribs. About an hour after this procedure, the plaintiff had extreme difficulty in breathing, could not catch his breath and was cyanotic and extremely apprehensive. Portable X-rays then taken showed that the left lung had been punctured and had collapsed, and the heart and mediastinal structures were displaced to the right, pressing against the trachea and esophagus, a condition known as pneumothorax. This required emergency measures because all respiration and air in the lungs could be completely shut off. A large bored needle was inserted into and remained in the chest where air had accumulated and pressed the underlung, heart and mediastinum to the right, and a large syringe was used to withdraw the air quickly, this procedure being known as thoracentesis. Although the breathing of the plaintiff was improved, he was still in critical condition because of the pain involved and the danger of recurrence of the pneumothorax condition. The severe chest pain existed almost from the moment of impact and would have persisted whether or not the plaintiff had pneumothorax. The plaintiff was conscious throughout these procedures and was extremely apprehensive of death then and thereafter.

Special nurses were assigned to the plaintiff. As he continued to complain of the severity of his pain, frequent administration of drugs was necessary. He was placed in an oxygen tent, and oxygen was later administered to him by face mask and then by taping a tube into his nostrils. His condition also necessitated intravenous transfusions, The plaintiff endured frequent uncontrollable and painful coughing spells throughout his hospitalization and had great difficulty trying to expectorate to relieve the condition of his chest. While he was still on the critical list on April 23, the pneumothorax recurred. The plaintiff again had...