Quednau v. Langrish

• Decision Date: 26 December 1957
• Court: Connecticut Supreme Court
• Parties: Rose K. QUEDNAU v. Ann T. LANGRISH. Supreme Court of Errors of Connecticut

Page 544

137 A.2d 544

144 Conn. 706

Rose K. QUEDNAU v. Ann T. LANGRISH.

Supreme Court of Errors of Connecticut.

Dec. 26, 1957.

Edward Seltzer, Hartford, for appellant (plaintiff).

Walter J. Sullivan, Hortford, with whom, on the brief, was Joseph V. Fay, Jr., Hartford, for appellee (defendant).

Before WYNNE, C. J., and BALDWIN, DALY, KING and MURPHY, JJ. BALDWIN, Associate Justice.

The plaintiff had a verdict for $4000 for personal injuries resulting from the negligent operation of the defendant's automobile. The plaintiff moved to set the verdict aside as inadequate. The court denied her motion. She has appealed, assigning error in the finding, in the denial of her motion, and in the charge to the jury.

A finding in a jury case is a narration of facts claimed by the parties to have been proven. Its purpose is to test the rulings of the court made during the trial. When the evidence affords a basis for the facts claimed, as it does for the portions of the finding challenged by the plaintiff, no corrections are warranted. Delfino v. Warners Motor Express, 142 Conn. 301, 302, 114 A.2d 205; Maltbie, Conn.App.Proc. (2d Ed.) p. 199.

The plaintiff's claims of proof may be stated in summary as follows: She was walking along the edge of the road on February 13, 1953, when the defendant's car backed into her and threw her forcibly to the ground. She received injuries to her right leg, hip, pelvic area, buttocks, and her back from her buttocks to her neck; her left ankle was scraped and bleeding, both arms ached, and she began to have severe headaches and dizzy spells. She was rendered nervous, distraught and hysterical. She remained in the hospital two days and thereafter was confined to her bed at home for ten weeks. She was away from her work for eighteen weeks. She has had a poor recovery and has been left with a severe nervous reaction and a permanent partial disability of 10 per cent in her right knee. Prior to her injury, she was in good health but with a low threshold of pain. Unknown to her, she had an osteophyte formation in the region of her sixth cervical vertebra which caused her no pain. This condition was aggravated by the accident and resulted in headaches and pain in her shoulders and left arm. She was forced to obtain further medical care, hospitalization and surgery because of this condition, and she was left with an over-all permanent partial disability of 5 to 10 per cent. She was forty-nine years old and earned $51.50 a week. She had a life expectancy of 21.63 years. Her special damages were $2297.75.

The defendant's claims of proof may be stated in summary as follows: The plaintiff was examined at her home following the accident by Dr. David W. Moser, who sent her to the hospital for examination, rest and sedation. The records of Dr. Moser and the hospital disclose only complaints and treatment related to bruises, contusions, and abrasions of the lower extremities, particularly the right side. Dr. Moser treated the plaintiff with sedation frequently during February and March, 1953, and periodically until September, 1956. The plaintiff's complaints of pain persisting, Dr. Moser on April 14, 1953, referred her to Dr. Gerald S. Greene, for an orthopedic examination. Dr. Greene diagnosed a partial tearing of the gastrocnemius muscle and prescribed therapy. The plaintiffs first complaint of neck pain to Dr. Greene was made on March 17, 1954. He referred her to Dr. William B. Scoville, who gave her a nuerological examination on April 20, 1954. Dr. Moser had noted complaints of neck pain on January 24, 1953, but the plaintiff in giving her history to Dr. Scoville stated that she had had no such pain until December, 1953. The complaints continued, and in December, 1954, Dr. Scoville operated on the osteophyte on the plaintiff's sixth cervical vertebra, enlarging the nerve passage to relieve nerve pinching. An osteophyte is common in people in middle life and is a gradual and insidious process over the years, continuing until it impinges upon the nerve and requires surgical treatment. It was not caused by the accident. The plaintiff had a low threshold of pain, and her complaints involved 'much functional overlay.' The special damages reasonably attributable to the treatment of the osteophyte were $1360.15.

The plaintiff assigns error in the portion of the charge relating to her low threshold of pain and the so-called functional overlay. That portion is set forth in full in the footnote. ¹ She claims that the court's comment upon the medical testimony relating to functional overlay was argumentative and tantamount to instructing the jury to find that she had exaggerated her injuries beyond reason. It is not only the right but often the duty of the trial court to comment upon the evidence. It has a wide discretion in performing that function. Comments are not improper if they tend to 'uncover the weakness of a weak case, the difficulties of a difficult case, or the strength of a strong case.' State v. Marx, 78 Conn. 18, 28, 60 A. 690, 694. The court, however, must leave the jury free to make their own decision of fact unless only one conclusion is reasonably possible. It must be careful not to misstate the evidence, and the comment must be fair and reasonable. The nature and extent of the comment must depend largely upon the facts of the particular case and the manner in which it has been tried. Heslin v. Malone, 116 Conn. 471, 477, 478, 165 A. 594; General Statutes, § 7969. The court in its charge cannot invade the province of the jury, and it must refrain from improper remarks which might injure a litigant in the jury's eyes. LaChase v. Sanders, 142 Conn. 122, 125, 111 A.2d 690; Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 502, 101 A.2d 500. In the portion of the charge relating to damages, the court in the present case, referring to the several allegations of the complaint, instructed the jury that it was their right, which the court was not taking away from them, to consider all the allegations. It then stated in summary the claims of the plaintiff and referred specifically to the claim for permanent injuries and the testimony of the doctors who had treated her. The court then charged that the jury should weigh the testimony of the doctors in the light of all the evidence in the case and 'give to it such weight as you think it deserves.' The theme that it was the jury's function to resolve the facts as to damages was reiterated several times in the charge.

The plaintiff claims that the vice of the court's comment is that the court put an improper interpretation, unfavorable to her, upon the medical testimony. In her claims of proof she concedes that she 'was a person with a low threshold of pain.' The defendant claimed to have proven that the plaintiff's complaints involved 'much functional overlay.' Since the symptoms from which the nature, extent, and permanency of the plaintiff's injuries were deduced were in large part subjective, the plaintiff's complaints of pain being relied upon rather than objective, the factors of the threshold of pain and the functional overlay were important. To understand the finding more fully, under the peculiar circumstances of this case, we may examine the evidence as printed in the appendices. Baldwin v. Robertson, 118 Conn. 431, 434, 172 A. 859; Maltbie, Conn.App.Proc. (2d Ed.) § 131. Dr. Moser, who was the first to treat the plaintiff, stated: 'If a person has a stronger sensation of pain or has more symptoms than we feel is physically justified * * * we refer to it as 'functional overlay,' meaning that in their own minds they are exaggerating the complaints which we think they should have.' Dr. Scoville had noted in the plaintiff's hospital record that her case was 'aggravated by * * * litigation factors' and was a 'disabling liability case with mcuh functional overlay.' Dr. Vincent J. Turco, a medical expert who had examined the plaintiff in the defendant's behalf, testified that 'an early settlement of litigation * * * would be * * * good treatment.'

The term 'functional overlay' appears to be a substitute for 'psychogenic overlay,' which has been defined as '[t]he emotionally determined increment to an existing symptom or disability which has been of an organic or physically traumatic origin.' Laughlin, Neuroses in Clinical Practice, p. 732. Even if the comment by the trial court is taken at its worst it had a basis in the claims of the parties as to the medical testimony of the witnesses called by the plaintiff. The inference was that the plaintiff was exaggerating her complaints beyond what was reasonable in the light of the nature of her injuries and that the termination of the litigation was, as the court charged, 'apt to cure a great deal of those complaints.' The court then stated that it was giving its own view of the meaning of 'functional overlay,' and added: 'That is not a rule of law, so you are not bound to take it from me. It is just an observation by me. You can use your own judgment in evaluating it.' The court thereafter instructed the jury that the plaintiff was entitled 'to recover for injuries and damages fair compensation * * * even though her injuries and the effect thereof are more severe and serious and will be prolonged longer than otherwise would have been [the case], because of her pre-existing condition of health at the time of the accident.' Other portions of the charge relating to the plaintiff's claims as to her injuries were adequate and unexceptionable.

It must be borne in mind that the trial judge and the jury had the plaintiff and her witnesses before them in court and had an opportunity to hear their testimony and observe their conduct on the witness stand. The comment bore directly upon the credibility of the plaintiff's testimony as to her complaints. Viewed in this light, it was not unlike comments on the credibility of witnesses which have been considered by us in other cases, and under the...