Tough v. Ives

• Decision Date: 26 January 1972
• Citation: 294 A.2d 67,162 Conn. 274
• Court: Connecticut Supreme Court
• Parties: Patricia A. TOUGH et al. v. Howard S. IVES, Highway Commissioner.

Page 67

294 A.2d 67

162 Conn. 274

Patricia A. TOUGH et al. v. Howard S. IVES, Highway Commissioner.

Supreme Court of Connecticut.

Jan. 26, 1972.

Robert L. Trowbridge, Glastonbury, and Paige J. Everin, Asst. Atty. Gen., with whom were James T. Healey, Hartford, and, on the brief, Robert K. Killian, Atty. Gen., and Jack Rubin, Asst. Atty. Gen., for appellant-appellee (defendant).

Charles G. Albom, New Haven, and Richard S. Levin, Hartford, with whom, on the brief, was Theodore I. Koskoff, Birdgeport, for appellee-appellant (named plaintiff).

Before HOUSE, C.J., and THIM, SHAPIRO, LOISELLE and O'SULLIVAN ^*, JJ.

LOISELLE, Associate Justice.

The plaintiff, Patricia Tough, brought this action in two counts to recover damages for personal injuries alleged to have been due to the breach of a statutory duty of the defendant state highway commissioner. The following is a brief, procedural history of the action. The trial court sustained a demurrer to the first count prior to trial. A so-called second complaint, filed by the plaintiff's father, was withdrawn just before trial. The jury returned a verdict for the defendant, which was accepted by the court. Thereafter the court, on motion of the plaintiff, granted a mistrial. The court denied the defendant's motion for judgment in his behalf; the defendant then moved in this court for an order directing the trial court to either render judgment on the verdict returned by the jury or set aside that verdict. This court granted the motion; Tough v. Ives, 159 Conn. 605, 268 A.2d 371; and the trial court set aside the verdict and ordered a new trial. The defendant appealed from the order setting aside the verdict; the plaintiff appealed from the judgment sustaining the demurrer to the first count and filed a cross-appeal and a bill of exceptions.

In support of his appeal, the defendant claims error in the action of the trial court in setting aside the verdict. In the absence of a statement in the finding of the trial court's conclusions with respect to the verdict, we consult its order setting aside the verdict and ordering a new trial to ascertain the basis of its ruling. In its order setting aside the verdict, the court adopted the reasoning of its memorandum of decision on the motion for mistrial. See Marin v. Silva, 156 Conn. 321, 324, 240 A.2d 909; Teitelman v. Bloomstein, 155 Conn. 653, 659, 236 A.2d 900. The memorandum stated the trial court's belief that the socalled 'Chip Smith' charge (State v. Smith, 49 Conn. 376, 386) obstructed a fair rendering of a unanimous verdict and interfered 'with the jury's freedom of deliberation.'

In order to test that judgment in its proper, factual context we look to the finding. Practice Book § 609; Wooster v. Wm. C. A. Fischer Plumbing & Heating Co., 153 Conn. 700, 703, 220 A.2d 449; see Gesualdi v. Connecticut Co., 131 Conn. 622, 632, 41 A.2d 771. According to the finding, the jury, after deliberating for some time, returned to the court and announced that they were unable to reach a unanimous verdict. The court then gave the Chip Smith charge. Neither party took exception. The court, in concluding the charge, stated: 'Now, this is standard procedure. I don't want you to discard your own personal feelings or judgment but I do ask you to go back once again, listen carefully to each other, do your best to see if you can't reach some resolution of this matter.' After an additional hour and thirteen minutes of deliberation, the jury reached a verdict, which the clerk announced, for the defendant. The court accepted the verdict and ordered it recorded. It then allowed the clerk to poll the jury. To the question: 'What is your verdict?' one juror answered: 'For the plaintiff.' The court then asked the juror: 'Are you for the state or for the lady?' The juror replied: 'For the lady.' After the clerk had polled all of the jurors, the following occurred:

'The Court: I wonder, Miss Baggish, whether you understood the question. Was this verdict unanimous, Mr. Foreman, as far as you knew?

Mr. Giansanti: Yes, Your Honor.

The Court: Then what did you mean, Miss Baggish, by saying you were for the lady?

Miss Baggish: Well, you told us to try to come to a unanimous conclusion by weighing the facts and perhaps considering that the other jurors had more in their favor and in that event I went along with the jury.

The Court: So you did vote finally for the defendant?

Miss Baggish: Right.

The Court: Any what you meant to say, I gather then, was that originally you felt the other way.

Miss Baggish: That is right.

The Court: But you now finally do vote for the defendant?

Miss Baggish: Yes.

The Court: Verdict is accepted and recorded.

Mr. Koskoff: May I have an exception, Your Honor?

The Court: Yes. Once again ask the whole group.

The Clerk: Ladies and gentlemen of the jury, harken to your verdict as accepted and ordered recorded by the Court, case number 143825, Patricia Tough, et al versus Howard S. Ives, State Highway Commissioner dated March 14, 1968, defendant's verdict, in this case the jury finds the issues for the defendant, signed by the foreman, James E. Giansanti. Ladies and gentlemen of the jury, is this your verdict? So say you all.

The Jury: Yes.'

The court followed approved procedures in receiving the verdict. The clerk read the verdict, the jury assented to it, the court accepted it and ordered it recorded. Ferris v. Hotel Pick Arms, Inc., 147 Conn. 72, 74, 157 A.2d 106.

Since State v. Smith, 49 Conn. 376, 386, we have consistently reaffirmed our approval of a supplementary charge to encourage a verdict, in both criminal and civil cases, in the face of an apparent deadlock. Szlinsky v. Denhup, 156 Conn. 159, 162, 239 A.2d 505; note, 19 A.L.R.2d 1257, 1258. We repeat the language in State v. Walters, 145 Conn. 60, 63-64, 138 A.2d 786, 789, cert. denied, 358 U.S. 46, 79 S.Ct. 70, 3 L.Ed.2d 45: 'The attack on the charge from State v. Smith, (49 Conn. 376, 386) on the ground that it amounted to a direction that the verdict be whatever a majority of the jurors thought is without semblance of merit. The accuracy of the charge as a statement of the jurors' duty is not open to question. Its use has been approved by the Supreme Court of the United States. Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528. Better than any other statement which has come to our attention it makes 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. Allen v. United States, supra. For practical reasons only, its use has customarily been deferred until after a disagreement has been reported. State v. Schleifer, 102 Conn. 708, 725, 130 A. 184. But after the foreman reported the disagreement the situation confronting the court practically required the giving of the charge. State v. Wyman, 118 Conn. 501, 506, 173 A. 155; State v. Bradley, 134 Conn. 102, 112, 55 A.2d 114.'

It is apparent from the trial judge's memorandum of decision that his sole ground for setting aside the verdict and ordering a new trial was his belief that the Chip Smith charge was prejudicial. The plaintiff, however, further claims that the court erred in interrogating the juror, as recited above, and requiring an explanation for her dissent, citing Bruce v. Chestnut Farms-Chevy Chase Dairy, 75 U.S.App.D.C. 192, 126 F.2d 224, 225, and Patterson v. Rossignol, 245 A.2d 852, 855 (Me.). These cases envision heavy-handed conduct which coerces the juror or ignores his decision. In the Bruce case, for example, the court accepted a verdict as unanimous when a juror at no time would assent to it.

Neutral inquiry by the trial judge as to the meaning of a juror's response is not erroneous. See United States v. Brooks, 137 U.S.App.D.C. 147, 420 F.2d 1350, 1353; Smith v. S & F Construction Co., 62 Wash.2d 479, 383 P.2d 300; 5A Moore, Federal Practice (2d Ed.), p. 2239; notes, 71 A.L.R.2d 640, 25 A.L.R.3d 1149. Only when such inquiry is coercive or seeks explanations, motives or information about occurrences in the jury room should it be found objectionable. The action by the trial court here at issue is wholly different. In the case at bar, there was no argument, by either court or counsel, with the juror. Nor did the court require an explanation from the juror as to whether she changed her mind or the reasons therefor. The questions asked sought only to elucidate the meaning of her statement; there was no further inquiry. When the juror stated that her verdict was for the defendant, there was no reason to send the jury back for further deliberations and the court was not in error in accepting the verdict.

Absent coercive circumstances surrounding the charge, which we do not find here, we are satisfied that the so-called Chip Smith charge does not work to deprive a party of his right to a unanimous verdict rendered on the conscientious consideration of each juror. The court, therefore, was in error in setting aside the verdict and ordering a new trial. As this error is dispositive of the defendant's claim for directing reinstatement of the verdict, his other assignments of error are not considered.

The plaintiff claims that even if the defendant prevails in his appeal, a new trial should be ordered due to errors of the court as outlined in the assignments of error supporting her cross appeal. In considering these assignments, we look to the finding, as the errors claimed, except that concerning the demurrer sustained prior to the trial which will be discussed later are errors in rulings on evidence, in the failure to charge as requested, and in the charge itself.

Relevant to the consideration of the assignments of error, which have not been abandoned, are...