Varley v. Motyl

• Decision Date: 15 July 1952
• Citation: 90 A.2d 869,139 Conn. 128
• Court: Connecticut Supreme Court
• Parties: , 32 A.L.R.2d 1439 VARLEY et al. v. MOTYL et al. Supreme Court of Errors of Connecticut

Page 869

90 A.2d 869

139 Conn. 128, 32 A.L.R.2d 1439

VARLEY et al. v. MOTYL et al.

Supreme Court of Errors of Connecticut.

July 15, 1952.

A. Arthur Giddon, Hartford, Morton E. Cole, Hartford (Cyril Cole, Hartford, on the brief), for the appellant, plaintiff John Varley and the appellee named plaintiff.

Joseph P. Cooney, Hartford (Jerome T. Malliet and Henry F. Cooney, Hartford, on the brief), for the appellants, defendants.

Before BROWN, C. J., and BALDWIN, JENNINGS, INGLIS and O'SULLIVAN, JJ.

JENNINGS, Associate Justice.

This is an action for personal injuries, allegedly sustained by the plaintiffs on December 25, 1945, when their automobile, which had stopped in a line of traffic, was negligently bumped from the rear by the defendants' car. The first count is for damages claimed by the plaintiff Hilma, who was a passenger. The second is for those claimed by her husband, the plaintiff John, who was the driver and owner of the car. The jury rendered a verdict for Hilma for $5000, and for John for $10,000. Upon his failure to file a remittitur of $3750 under the court's order, the verdict in his favor was set aside and he has appealed. The defendants have filed a bill of exceptions upon John's appeal and have appealed from the judgment in favor of the plaintiff Hilma.

The plaintiff Hilma claimed to have proved that she was fifty-four years of age, that she sustained painful and permanent injuries when forcibly thrown from her seat by the impact, and that her principal permanent injury was to her lower back. One of the defendants' claims of proof was that she 'was suffering from a chronic sacroiliac arthritis of long duration which appeared in X-ray films taken four days after the accident.' In dealing with the question of her injuries the court made no reference to this claim of the defendants. On the contrary, the court charged that she would be entitled to be compensated for what she would fairly be expected to suffer from her permanent condition, in so far as that was proved, for the period of her life expectancy. Upon the conclusion of the charge the defendants' counsel took exception to the omission. No further instructions on this point were given. Particularly in view of the defendants' timely objection, the jury should have been cautioned that the plaintiff Hilma should not be compensated for suffering or incapacity attributable to a pre-existing chronic arthritic condition of her back. The court's failure to give this caution constituted reversible error.

John Varley appeals on the ground that the trial court should not have ordered a remittitur but should have entered judgment on the verdict. The court did not question his serious physical condition but concluded that it was not due to the accident and that the jury were swayed by sympathy for him and also were punishing the defendants for claiming, on the basis of testimony which the jury did not believe, that the accident was caused by a third car.

The jury could reasonably have found that John was sixty-one years old at the time of the occurrence. He had brought up three sons, all married. He had worked for nineteen years at the Bond Hotel and, in 1941, went to work for Pratt and Whitney in West Hartford, where he operated a turret lathe. His wages were about $46 per week. With the exception of a pulled ligament when he was working for the Bond, he had never before had an accident. He had had a heart attack in 1940 and a slight one in 1942. When his car was struck from the rear his head snapped back, his hat flew off and his feet came off the pedals. His chest struck the steering wheel. He stayed at the scene for about an hour trying to get the cars apart. It was raining hard and he became chilled. His back and neck were injured and a week later he was taken to the hospital because of pneumonia and heart trouble, later diagnosed as a coronary thrombosis. He was out of work for ten weeks at that time. His neck and back bothered him for about a year. His heart pains continued to the date of trial. The history of his employment since the accident has been of starting on his old job but being forced to quit in April, 1947, because of his physical condition and then seeking lighter and lighter work. His search was in vain for a period of one year and nine months. At the time of trial, he was working as a part-time watchman, four hours a night, for $50 a month. His injuries were caused by the accident. He was advised by his doctor to retire. His and his wife's bills due to the accident, including loss of his wages to the date of trial, amounted to about $5000.

The real question on this phase of the case, as noted by the trial court, was whether John's admittedly serious condition and his consequent loss of earning power were the result of the accident. There was direct evidence that this was so. It was a question of fact. Once it was established, it could not be said that the verdict was excessive. 'The question of damages in personal injury cases, especially in these times of changing values, is always a difficult one. Prosser v. Richman, 133 Conn. 253, 256, 50 A.2d 85. Assessment of damages is peculiarly within the province of the jury and their determination should be set aside only when the verdict is plainly excessive and exorbitant.' Slabinski v. Dix, 138 Conn. 625, 629, 88 A.2d 115, 117. In Horvath v. Tontini, 126 Conn. 462, 11 A.2d 846, the issue was liability rather than damages, but the relative spheres of court and jury were clearly defined. In that case, as in the case at bar, the trial court said that the jury must have been swayed by sympathy or other improper motives. In ordering judgment on the verdict, this court said, 126 Conn. at page 464, 11 A.2d at page 847: 'Upon issues regarding which, on the evidence, there is room for reasonable difference of opinion among fair-minded men, the conclusion of a jury, if one at which honest men acting fairly and intelligently might arrive reasonably, must stand, even though the opinion of the trial court and this court be that a different result should have been reached.' Judgment should have been entered on the verdict unless there was reversible error on the defendants' bill of exceptions.

The first exception complains of the court's charge concerning the effect of John's pre-existing heart condition. Since the bill of exceptions contains no sufficient statement of facts setting forth the parties' claims of proof, consideration of this question is precluded. Practice Book § 410, Form No. 563; Maltbie, Conn.App.Proc., § 85. The other exception concerns a single ruling upon evidence relating to John's heart condition. His attorney in the course of his examination of John asked: 'And your heart condition since this accident, will you tell us up to the present time has it been better or worse than it was prior to the accident?' Counsel for the defendants objected, stating: 'There is no claim in the complaint of an aggravation of a pre-existing heart condition * * *. At no time in this complaint did Mr. Cole ever disclose that his client had a pre-existing heart condition which he claimed was aggravated by the accident.' To this John's counsel replied that he did not so claim, 'because the man had no trouble with his heart with the exception of a mild attack three years before and the attack in 1940. Other than that he had no heart condition.' The court allowed the question and John answered: 'Worse than it was before.' The only material allegation in the complaint in that the injuries sustained in the accident 'affected and injured his heart.' The importance of determining whether or not, in the absence of any allegation thereof in the complaint, John was entitled to prove that the pre-existing diseased condition of his heart was aggravated by the accident in clear.

Whether the court erred in admitting this evidence depends upon the answer to the question whether the allegation in the complaint that the accident affected and injured John's heart lays a proper foundation for evidence of the aggravation of a pre-existing heart condition. The admissibility of this evidence has been argued as though the only question was whether the damage claimed was special, requiring a specific allegation, or general. Ordinarily, such things as loss of earnings, doctors' and hospital bills are referred to as special damages. Since they do not necessarily follow an injury, the defendant is entitled to notice of them by a special allegation. Tomlinson v. Derby, 43 Conn. 562, 567. An injury to the heart, for example, does not necessarily follow an accident either. John therefore properly alleged injury to his heart as special damage. The question is not between special and general damages. It is whether the complaint containing this allegation gave sufficient notice of the type of injury which would be claimed. Smith & Egge Mfg. Co. v. Webster, 87 Conn. 74, 83, 86 A. 763; Baldwin v. Robertson, 118 Conn. 431, 435, 172 A. 859.

There is authority for the defendants' position that the aggravation of a pre-existing condition must be specially alleged. Littman v. Bell Telephone Co., 315 Pa. 370, 380, 172 A. 687; Samuels v. New York Rys. Corporation, 226 App.Div. 94, 96, 234 N.Y.S. 377. In most of the states, evidence offered under circumstances similar to those in the case at bar is admitted. St. Louis Trust Co. v. Murmann, 90 Mo.App. 555, 559; Leingang v. Geller, Ward & Hasner Hardware Co., 335 Mo. 549, 556, 73 S.W.2d 256; Conrad v. Shuford, 174 N.C. 719, 720, 94 S.E. 424; Wadell v. Public Service Coordinated Transport, 3 N.J.Super. 132, 135, 65 A.2d 766; Virginia Ry. & Power Co. v. Hubbard, 120 Va. 664, 669, 91 S.E. 618; Frick v. Washington Water Power Co., 76 Wash. 12, 13, 135 P. 470. As is well pointed out in the dissent in this case, the complaint does not conform to good pleading. We hold, however, that the allegation that the defendants' negligence 'affected and injured' John's heart was...