Szlinsky v. Denhup

• Decision Date: 13 February 1968
• Citation: 239 A.2d 505,156 Conn. 159
• Court: Connecticut Supreme Court
• Parties: Mary SZLINSKY v. Paul J. DENHUP.

Page 505

239 A.2d 505

156 Conn. 159

Mary SZLINSKY v. Paul J. DENHUP.

Supreme Court of Connecticut.

Feb. 13, 1968.

Frederick L. Comley, Bridgeport, for appellant (defendant).

James J. A. Daly, Bridgeport, with whom were John Gill, Bridgeport and, on the brief, Daniel E. Brennan, Jr., Bridgeport, for appellee (plaintiff).

Before ALCORN, HOUSE, COTTER, THIM and RYAN, JJ.

THIM, Associate Justice.

In the present case, the plaintiff sought to recover damages for personal injuries which she sustained when an automobile she was operating collided with an automobile owned and operated by the defendant. The case was tried to a jury which returned a verdict in favor of the plaintiff. The court accepted the verdict and rendered judgment thereon, from which the defendant has appealed.

We only consider the two assignments of error which the defendant has pursued in his brief. The defendant claims that the supplemental instruction given by the court to the jury after they reported their inability to reach a verdict was inadequate He also claims that the trial court violated § 52-223 of the General Statutes and Practice Book, § 246 by returning the jury for further deliberations after it had received three reports of disagreement from the jury.

The trial of the case continued over a period of five days. The basic charge of the court to the jury, to which no exception was taken, was completed at approximately 3:35 p.m. on Tuesday, March 14, 1967, and the jury commenced their deliberations, which lasted until 4:40 p.m., at which time they were excused and allowed to go home for the night.

Deliberations were resumed at 10:45 the following morning, and they continued, except for a luncheon recess, until 3:15 p.m., at which time the jury reported they were in disagreement. The court recalled the jury and gave them a supplemental instruction adapted from the charge which had been approved by this court in State v. Smith, 49 Conn. 376, 386, and which is customarily given after a disagreement has been reported. State v. Avery, 152 Conn. 582, 584, 211 A.2d 165; State v. Walters, 145 Conn. 60, 63, 138 A.2d 786, cert denied, 358 U.S. 46, 79 S.Ct. 70, 3 L.Ed.2d 45. The defendant took an exception to the supplemental charge. Thereupon, the jury retired and resumed deliberations. Within an hour, they reported they were still in disagreement. Upon receipt of this report, the court excused the jury and requested them to resume their deliberations the following morning. Before excusing the jury for the day, however, the trial judge expressed his hope that a respite until the next morning might assist them in arriving at a just verdict in accordance with the instructions he had given to them.

The jury resumed deliberations at approximately 10 o'clock the following morning without further instructions. After deliberating about one hour, the jury sent the court a third note, which stated that they were hopelessly in disagreement. The trial judge, after recalling the jury, requested them to retire for a few minutes and consider whether the reading of any of the evidence might assist them in reaching unanimity of opinion. The defendant then moved for a mistrial, which was denied. The jury resumed deliberations. Within a short time they requested the court to have the defendant's testimony read, and the court complied. At 11:40 a.m., the court reporter started to read the defendant's testimony which he finished, after the luncheon recess, at 2:25 p.m. The jury retired immediately and resumed deliberations. At 2:50 p.m., the jury returned to the court room and reported a verdict for the plaintiff. The jury had deliberated approximately seven hours.

The defendant does not question the accuracy of the supplemental charge as a statement of a juror's duty. It made 'clear the necessity, on the one hand, of unanimity among the jurors in any verdict, and on the other hand the duty of careful consideration by each juror of the views and opinions of each of his fellow jurors, something without which no intelligent body of twelve would be likely to reach a unanimous result in any case where there was any substantial factual dispute.' State v. Walters, supra, 145 Conn. 64, 138 A.2d 789. An instruction concerning the juror's duty is proper in a civil, as well as in a criminal, trial. Wheeler v. Thomas, 67 Conn. 577, 580, 35 A. 499; note, 19 A.L.R.2d 1257, 1258 §§ 1, 2.

The defendant claims that the court erred in neglecting to mention in its supplemental instruction that the jury must consider whether there was a fair preponderance of evidence favoring the plaintiff. Although the defendant did not request the court to repeat its charge on the burden of proof, he argues that it was erroneous for the court to have omitted it from its supplemental charge on the duty of jurors in disagreement. We do not agree.

The court has discretionary power to give, on its own motion, a supplemental instruction to a jury. See Buck v. Robinson, 128 Conn. 376, 378, 23 A.2d 157; 89 C.J.S. Trial, § 475a. The basic charge and the supplemental instruction are to be read and considered as a whole. State v. Johnson, 139 Conn. 89, 93, 90 A.2d 905. A court should not be bound to bring into a supplemental instruction matters which have been stated in the basic charge unless it becomes necessary to repeat a proposition of law so that the jury may fairly and intelligibly understand the supplemental instruction. The ultimate test of a court's charge is whether it fairly presents the case to a jury in such a way that injustice is not done to either party under the established rules of law. Cappella v. New York, N.H. & H.R. Co., 154 Conn. 410, 414, 226 A.2d 394; Lucier v. Meriden-Wallingford Sand & Stone Co., 153 Conn. 422, 425, 216 A.2d 818.

To assist the jury in the instant case to reach a unanimous verdict, it does not appear that it was necessary for the court to charge the jury that, in their reconsideration of the case, they were to be governed by an earlier instruction pertaining to the burden of proof. Whether reference to a portion of the basic charge should have been made was a matter which called for the exercise of the court's discretion. There is nothing in the record to indicate that the court abused its discretion.

It is the defendant's claim that the court, by directing the jury to resume deliberations after it had received the third report of disagreement, violated § 52-223 of the General Statutes, which provides: 'The court may, if it judges the jury has mistaken the evidence in the cause and has brought in a verdict contrary to it, or has brought in a verdict contrary to the direction of the court in a matter of law, return them to a second consideration, and for like...