13 A.2d 138 | Conn. | 1940
The plaintiff brought this action against the defendant company to recover upon an insurance policy for damage by fire to a house owned by her, alleging, in addition to facts relevant to a *571 recovery of damages, that by fraud or mistake the policy had named both herself and her husband, Joseph Brunetto, as the insured; and she sought "by way of equitable relief" a reformation of the policy and damages. Upon motion the husband was made a party defendant, but judgment by default was rendered against him. The case was tried to the jury and they returned a verdict for damages against the husband as well as the defendant company. The trial court set the verdict aside because it held it to be excessive, because there was no basis for judgment for damages against the husband, because of several errors the court was of the opinion it had committed in its charge to the jury, and because of improper argument by the plaintiff's counsel which it believed it had not successfully counteracted in the charge. From this ruling the plaintiff has appealed.
The plaintiff concedes that the verdict was excessive and of course a verdict for damages against the husband was improper; but she claims that the trial court should not have set the verdict aside unconditionally but should have directed that it be set aside unless a remittitur of the excess amount of damages were filed. In an early case we followed certain English precedents which denied the right of a plaintiff after judgment to remit a portion of the damages as not properly awarded. Davenport v. Bradley,
The trial court was unduly critical of its charge. In fact its memorandum of decision, when read in the light of the claims of the parties, emphasizes the caution which we gave in Jackiewicz v. United Illuminating Co.,
As its ruling affords the basis for a new trial, it may be well to point out certain matters of procedure which apparently were overlooked. There are certain situations where, in an action at law for damages, a plaintiff may prove that a contract by mutual mistake does not really represent the intent of the parties and where he may recover damages based upon the contract which was actually made, in disregard of its mistaken form. Tolman v. McLay,
There is no error.
In this opinion the other judges concurred.