Zullo v. Zullo

• Decision Date: 06 May 1952
• Court: Connecticut Supreme Court
• Parties: ZULLO v. ZULLO. Supreme Court of Errors of Connecticut

Page 216

89 A.2d 216

138 Conn. 712

ZULLO v. ZULLO.

Supreme Court of Errors of Connecticut.

May 6, 1952.

Joseph G. Shapiro, Bridgeport, Milton H. Belinkie, Bridgeport, for appellant.

Paul V. McNamara, Bridgeport, William R. Jones, Bridgeport, for appellee.

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

JENNINGS, Associate Justice.

The plaintiff had a $20,000 verdict in a negligence case. The defendant appealed from the denial of his motion to set aside the verdict and from the judgment.

The jury reasonably could have found the following facts: Defendant and plaintiff are husband and wife. They were not getting along well. On Friday nights the plaintiff liked to go bowling with her girl friends. The defendant wanted the plaintiff to go out with him on the Friday night in question although she had been at home alone every other night of the week. She went out in a friend's car. The defendant saw her and insisted that she go with him although she did not want to. He then drove her to an inn just over the New York state line. He was 'hollering' at her all the way about her girl friends and she was crying. They spent the evening at the inn. Both had more or less to drink. Neither was drunk when they left shortly after midnight. Some young fellows who left the inn at the same time offered to drive the defendant's car and urged him to let his wife drive, but he said that it was his car and that he was going to drive it himself. After traveling a few miles at excessive speed, the defendant's car left the road, knocked down eight fence posts and broke off a telephone pole. The plaintiff was frightfully injured and nearly killed.

The principle determinative of the defendant's claim that the verdict is excessive is well stated in Amellin v. Leone, 114 Conn. 478, 479, 159 A. 293: 'The concurrence of twelve men composing the jury, especially when their conclusion is supported by the presiding judge, all of whom have had the opportunity of seeing and hearing the witnesses, comes to this court with weighty considerations in its favor, and should and will not be disturbed unless it clearly appears that the action of the jury was unreasonable or motivated by improper considerations or that the presiding judge has exceeded his discretionary control over the verdict.' It would serve no useful purpose to describe the plaintiff's injuries in detail. Suffice it to say that we cannot hold as a matter of law that the trial court abused its discretion in refusing to set aside the verdict as excessive. Slabinski v. Dix, 138 Conn. 625, 88 A.2d 115; Scarcello v. Town of Greenwich, 127 Conn. 464, 466, 17 A. 2d 523.

The claim of the defendant that the verdict was against the evidence is based on a peculiar and unusual situation. The plaintiff testified on her direct examination that she remembered nothing after she asked the defendant to go home. On cross-examination it appeared that shortly before this trial she was a witness in her own behalf in a divorce suit brought by her against the defendant. She admitted that in the divorce suit she testified to the defendant's condition when they left the inn, that he was unfit to drive and that she knew it. Her explanation of this inconsistency was that her statement that she remembered nothing after asking the defendant to go home was true and that the testimony about her husband's condition was the result of what various people had told her. The situation is unsavory at best but the categorical denials by the plaintiff and the defendant that the latter was unfit to drive are supported to some extent by the testimony of the officer at the scene. It is elementary that the jury is the judge of the credibility of witnesses. This is true whether the contradiction is between different witnesses, as in Lewis v. Healy, 73 Conn. 136, 138, 46 A. 869, and Amellin v. Leone, supra, or between differing statements made by the same witness, as in Stitham v. LeWare, 134 Conn. 681, 683, 60 A.2d 658, Rode v. Adley Express Co., 130 Conn. 274, 278, 33 A.2d 329, and State v. Willis, 71 Conn. 293, 314, 41 A. 820. See Porcello v. Finnan, 113 Conn. 730, 733, 156 A. 862; Kanopka v. Kanopka, 113 Conn. 30, 35, 154 A. 144, 80 A.L.R. 619; Fitzpatrick v. Cinitis, 107 Conn. 91, 96, 139 A. 639. As has been stated above and in innumerable cases, the concurrence of the judgments of the judge and the jury who saw the witnesses and heard the testimony is a powerful argument for sustaining the action of the trial court. We cannot hold on this point that it abused its discretion.

The final claim of the defendant on his motion to set aside the verdict is that it is against the law. He claims that the plaintiff, in entering his car under the circumstances, was guilty of contributory negligence and assumed the risk of injury as a matter of law. A distinction is made between these defenses in L'Heureux v. Hurley, 117 Conn. 347, 353, 168 A. 8, and Freedman v....