Turner v. Scanlon

Decision Date27 January 1959
CourtConnecticut Supreme Court
PartiesButler D. TURNER v. Thomas F. SCANLON, Jr. Supreme Court of Errors of Connecticut

David M. Reilly, Jr., New Haven, for appellant (defendant).

John Keogh, Jr., Norwalk, for appellee (plaintiff).

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

BALDWIN, Associate Justice.

The plaintiff had a verdict for injuries arising out of an automobile accident which occurred in Norwalk on November 27, 1955. The defendant moved to set the verdict aside and also for a new trial on the ground of newly discovered evidence. The trial court denied both motions. The defendant has appealed, claiming error in the denial of his motions, in the charge and in the finding.

We shall discuss first the three errors claimed in the finding which are pursued in the brief. The claims of proof in a finding in a case tried to a jury are not statements of facts found by the trier but only statements of facts which are claimed by the parties and could have been found from the evidence. In the instant case, the claims of proof were made for the sole purpose of testing the correctness of the charge. Salvatore v. Hayden, 144 Conn. 437, 439, 133 A.2d 622; Maltbie, Conn.App.Proc., § 145. There was competent evidence to support those attacked. The defendant asserts that the court erred in refusing to include in the finding a paragraph of his draft finding of the plaintiff's claims of proof. A party cannot compel his adversary to incorporate in his claims of proof factual matter upon which he does not rely. Salvatore v. Hayden, supra; Maltbie, op. cit., p. 199. There is no error in the finding.

The plaintiff claims to have proven the following facts: On Sunday morning, November 27, 1955, the plaintiff, a man sixty-five years of age, was operating, while alone, his Chrysler automobile in a southerly direction on West Avenue in Norwalk and had come to a stop to allow pedestrian traffic to cross. While his automobile was standing still, it was struck in the rear by an automobile owned and operated by the defendant. The blow was severe and pushed the Chrysler ahead about one-fourth of its length. The plaintiff was assisted from the car and was taken to a nearby gasoline station and from there to the Norwalk Hospital, where he remained nineteen days. His neck and spine were injured in the collision and he suffered a carebral concussion. He was confined to his bed at the hospital for two weeks, during which he experienced severe pain. In an automobile accident in 1951, he had sustained a fracture of a cervical vertebra but was not hospitalized. Following the 1951 accident, he received treatment from Dr. John J. Scanlon several times over a period of two years. During 1955, prior to the accident on November 27, the plaintiff visited Dr. Scanlon for complaints unrelated to the 1951 accident. On these occasions he made no complaints of any pain in the cervical or lumbar regions of his back.

X-rays taken after the accident in 1955 showed an old ununited fracture of the odontoid process of one of the cervical vertebrae and a pre-existing condition of osteoarthritis of the spine. This osteoarthritis was aggravated by the accident on November 27. While the plaintiff was in the hospital, codeine and other sedatives were administered to relieve pain, and he was required to sleep on a bed board so that the fractured vertebra would not be displaced. After leaving the hospital, he was confined to his home for approximately five weeks. He was totally disabled for two months and was under medical treatment for complaints of pain in his head, neck and back. An examination by Dr. Scanlon on April 16, 1957, revealed tenderness of the mastoid process and the seventh cervical vertebra, with pain radiating therefrom. The plaintiff suffered pain down to the time of the present trial and was receiving heat treatments for his back five days a week. As a result of the collision on November 27, 1955, the plaintiff sustained a 20 per cent permanent disability to his spine. His hospital and medical bills totaled $665.15.

The plaintiff had operated an upholstery and interior decorating business in Norwalk since 1935. A cabinetmaker by trade, he had specialized in antique wood finishing. In 1953, his gross income was $8,735.98 and his net $1,913.56; in 1954, his gross was $11,020.80, his net $2,765.86; in 1955, his gross was $10,840.94, his net $3,734.20; and in 1956, while his gross, $12,848.63, was $2,008 more than it was in 1955, his net, $3,642.44, was $92 less. Two months after the 1955 accident, the plaintiff was able to do some clerical work and to instruct his employees, but he has been unable to do as much manual labor as he did before the accident and has confined himself to light work. Since the accident, he has been compelled to employ additional help, and his wife, who has always assisted him in his business, has been required to work harder and for longer hours. The plaintiff has a life expectancy of thirteen years. The defendant accepted responsibility for the collision.

The defendant claimed to have proved the following: He was driving his car south on West Avenue about a block from, and approaching, St. Mary's Church. His attention was momentarily diverted by one of his boys in the rear seat. Upon again looking ahead, he saw a vehicle in front of him. He attempted to apply his brakes, but they failed to function. At an intersection shortly before he reached the place where the collision occurred, the brakes had functioned properly. The defendant did not know that his brakes were defective, and he could not stop his car because they were. The impact between the two vehicles was not severe. The X-rays of the plaintiff showed only conditions related to the accident of 1951. Doctors treating him could rely, for diagnosis, only on these X-rays and the plaintiff's subjective complaints. Prior to the 1955 accident, the ununited fracture of the odontoid process of the cervical vertebra and the condition of osteoarthritis were permanent. They remained so after the accident. The only treatment which the plaintiff received because of the 1955 accident was the administration of sedatives, alcohol rubs, and the use of the bed board. The 1955 accident did not render the plaintiff unconscious but only dazed him, and thereafter there were no symptoms of concussion or its effects. The plaintiff remained in the hospital nineteen days as a precautionary measure only, because of the old fracture of the odontoid process. Ten days would have been a reasonable time. Before the 1955 accident, the plaintiff was subject to the same danger of a possible severance of the spinal cord from the ununited fracture of the cervical vertebra as he was after. The only objective symptoms at any time following the 1955 accident were those relating to the 1951 accident. The condition of osteoarthritis is not disabling unless there is pain. The plaintiff's condition would have grown progressively worse regardless of the accident in 1955, and the permanency of the condition was not due to the accident. Income tax returns showed that the plaintiff had not suffered any loss of earning capacity by reason of the later accident.

The complaint alleged, among other things, that the defendant failed to have his automobile under control, to apply proper brakes and to bring his car to a timely stop for traffic stopped ahead. The court charged the jury, in accordance with § 1327d of the 1955 Cumulative Supplement (Rev.1958, § 14-80 [a]), to the effect that a motor vehicle operated upon the highways of the state should be equipped with a braking system adequate to control the movement of, and to stop or hold, the vehicle, including two separate means of applying braking power, each of which should be effective to apply braking power to at least two wheels. The court stated that a failure to comply with this statute would constitute negligence. The defendant claims that the statute deals only with the type of braking system with which automobiles are to be equipped and does not require that the brakes be maintained at all times in good and sufficient working order. He argues that the statute does not prescribe a rule of conduct for drivers which makes them guarantors of the effective operation of the brakes on their automobiles. In Romansky v. Cestaro, 109 Conn. 654, 657, 145 A. 156, we held that the failure of brakes to comply with the requirement of the statute then in effect 1 was not negligence per se and that liability followed under the statute only if the failure was due to the negligence of the owner or operator. Shortly after the announcement of that decision, the General Assembly amended the statute by adding, among other things, a clause that brakes 'shall, at all times, be maintained in good working order.' Public Acts 1929, c. 297, § 18; Rev.1930, § 1597; as amended, Cum.Sup.1935, § 606c; Rev.1949, § 2428. In Madison v. Morovitz, 122 Conn. 208, 214, 188 A. 665, we said, in effect, that the addition of the clause established a rule of conduct as distinguished from a mere requirement as to equipment and that a violation constituted negligence. See Smith v. Finkel, 130 Conn. 354, 359, 34 A.2d 209; Pappaceno v. Picknelly, 135 Conn. 660, 664, 68 A.2d 117. The statute was amended again in 1949 and the clause in question was omitted. Cum.Sup.1955, § 1327d. 2 The defendant argues that the intent of the law as announced in Romansky v. Cestaro, supra, was thereby restored.

It is true that the amendment of the statute after the announcement of the decision in Romansky v. Cestaro might indicate a legislative understanding that before the amendment the statute stated merely a requirement as to equipment and not a rule of conduct for the owner or operator. See Willoughby v. City of New Haven, 123 Conn. 446, 455, 197 A. 85. It is also true that the action of the General Assembly in re-enacting the statute, including the clause...

To continue reading

Request your trial
80 cases
  • Gelinas v. West Hartford
    • United States
    • Appellate Court of Connecticut
    • August 28, 2001
    ...189, 192, 423 A.2d 857 (1979); Second Injury Fund v. Lupachino, 45 Conn. App. 324, 342, 695 A.2d 1072 (1997); see Turner v. Scanlon, 146 Conn. 149, 157, 148 A.2d 334 (1959). "Legislative intent is found not in what the legislature meant to say but in the meaning of what it did say." Dana-Ro......
  • State v. Reid
    • United States
    • Supreme Court of Connecticut
    • July 17, 1984
    ...produce it, an inference would be justified that the [evidence], if produced, would be unfavorable to that party." Turner v. Scanlon, 146 Conn. 149, 161, 148 A.2d 334 (1959). The defendant's sister was available as a witness and, since she had the opportunity to observe his condition soon a......
  • Skakel v. State Of Conn.
    • United States
    • Supreme Court of Connecticut
    • April 20, 2010
    ...v. State, 141 Conn. 202, 208, 104 A.2d 761 (1954); Taborsky v. State, 142 Conn. 619, 623, 116 A.2d 433 (1955); Turner v. Scanlon, 146 Conn. 149, 163, 148 A.2d 334 (1959); Lombardo v. State, 172 Conn. 385, 391, 374 A.2d 1065 (1977); Burr v. Lichtenheim, 190 Conn. 351, 355, 460 A.2d 1290 (198......
  • Carpenter v. Meachum
    • United States
    • Supreme Court of Connecticut
    • March 18, 1994
    ...impliedly ratified prior judicial interpretation of it. State v. Kyles, 169 Conn. 438, 442, 363 A.2d 97 (1975); Turner v. Scanlon, 146 Conn. 149, 156, 148 A.2d 334 (1959); see Anderson v. Ludgin, 175 Conn. 545, 555, 400 A.2d 712 (1978)." Grodis v. Burns, 190 Conn. 39, 47 n. 5, 459 A.2d 994 ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT