Stults v. Palmer

• Decision Date: 29 November 1954
• Citation: 109 A.2d 592,141 Conn. 709
• Parties: Marle B. STULTS et al. v. Anna F. PALMER et al. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 592

109 A.2d 592

141 Conn. 709

Marle B. STULTS et al. v. Anna F. PALMER et al.

Supreme Court of Errors of Connecticut.

Nov. 29, 1954.

David Cramer, Litchfield, with whom, on the brief, was Clayton L. Blick, Litchfield, for appellants (defendants).

S. Michael Schatz, Hartford, with whom were Ralph M. Shulansky, Hartford, and, on the brief, Joseph Adinolfi, Jr., Hartford, for appellees (plaintiffs).

Before INGLIS, C. J., and BALDWIN, O'SULLIVAN, DALY and MOLLOY ^*, JJ.

DALY, Associate Justice.

The defendants have appealed from a judgment awarding the plaintiff Sally A. Stults $9000 in damages for personal injuries and the plaintiff Marie B. Stults $900 for damage to her automobile. The defendants contend that the damages awarded each plaintiff were excessive. In making this claim, they maintain that the trial court erred in finding facts without evidence, 'as such findings contradict the findings made by the Court as expressed in the Memorandum of Decision.' In support of their contention that the court erred in rendering judgment for the plaintiff Sally to recover $9000 in damages, they state that testimony which the memorandum of decision shows was accepted by the court as competent indicates that Sally's personal injuries were substantially less than those found by the court.

If any conclusions stated in the memorandum of decision are at variance with those in the finding, the latter will prevail. Metropolitan Life Ins. Co. v. Bassford, 120 Conn. 384, 388, 180 A. 692; Maltbie, Conn.App.Proc., p. 120. The memorandum of decision cannot take the place of a finding. Statements of fact in it cannot be used to supplement the finding unless, for some specific, unusual purpose, the memorandum of decision is expressly made a part of the finding. The memorandum of decision was not made a part of the present finding, nor should it have been, and the defendants cannot make use of it to supplement the facts set forth in the finding. Goldblatt v. Ferrigno, 138 Conn. 39, 40, 82 A.2d 152. 'The cause is to be decided upon the facts found, not upon those contained in the memorandum of decision.' Turner v. Connecticut Co., 91 Conn. 692, 696, 101 A. 88, 90.

The court found that the plaintiff Sally was out of work approximately seventy-six weeks and four days and that she lost wages amounting to approximately $4975. This was supported by evidence appearing in the appendix to the plaintiffs' brief, as was the finding that she suffered a whiplash injury of the cervical spine, a lumbosacral derangement due to ligamentous injuries, and a traumatic coccygodynia as a result of the collision. There was also evidence to sustain the finding of permanent disability. The assessment of damages in personal injury cases is peculiarly within the province of the trier and will only be disturbed when plainly excessive. Sette v. Dakis, 133 Conn. 55, 61, 48 A.2d 271; and this is particularly so where the amount is determined by the court in a...