*1 further if the board plaintiff’s that, contention believed that it former to reverse its powerless decision, that consideration would affect deter- its mination of whether a traffic hazard would be created is based surmise so nebulous that it has no validity.
There is no error. In this the other opinion judges concurred.
John Lengel, Administrator (Estate
George v. The Lengel) New Haven Light Company
Gas et al. Daly Inulis, J., O’Sullivan, Wynne, C. Molloy, Js. *2 Argued reargued October December 1954 decided January 25, 1955 Morris Tyler, with whom was John H. Filer, for the appellant (named defendant).
J. Kenneth Bradley, for the appellants (defend- ants Rosa et al.). J. Frank were with whom Koskoff,
Theodore I. appellee Hennessy for Alderman, and Joel (plaintiff). appellants Qormley appeared for E.
Martin al.). (defendants et Marston Liability this case conceded J. was O’Sullivan, jury question submitted sole and the damages. $60,000, returned defendants, motions which court, *3 appealed, defendants have The refused to set aside. (1) motions assigning of their the denial as error plead- sending (2) in the court the action of the and ings room. to the pre- question preliminary is for determination
A ap- by plaintiff’s the dismiss sented the motion to peal. the as amend This well one “to motion, by wording appeal,” the defend- of the submitted case had been filed weeks after the ants, was several argued parties its merits. filed their re- on The belatedly spective when it discovered motions appeal had been couched language: “In the above entitled the defend- action, appeal Supreme ants of to the Court Errors from denying court decision defendants’ of point motions to set the verdict aside.” The raised to dismiss centers around the motion the words which we have italicized. creating Supreme after constitution,
The a Court provides powers jurisdiction that its Errors, and § shall be defined law. Conn. Const. Art. Y 1. conformity Assembly In has therewith, General legislation establishing from to time time enacted jurisdiction. powers legislation the court’s The dealing topics chap- with these to now be found in Among the sections ter 391 of Statutes. the General sweeping incorporated which, therein is one language, jurisdiction extensive of rather confers part scope. pertinent § of that section The “[u]pon of fact of all matters states that the trial superior any court. . ., ... in the cause or action party aggrieved if either the decision any question questions law court . . or .
arising including the denial of a motion the trial, may appeal final to set from the aside he verdict, judgment may appeal of the court . or from ., . he granting the decision of the court a motion set supreme aside a court of errors.” foregoing expressly statute recites that the presents denial of a motion to set the verdict aside question arising necessarily of law in the trial. It jurisdiction follows that this court has to review the legality provides, § of such a denial. Since 8003 question brought however, that the can be to this only by judgment from the final preliminary problem the trial court, to be dis- posed alleged of in the case at bar is whether the *4 appeal failure judgment the defendants to from the final appeal plaintiff renders void, appeal juris- maintains. If the is void, we have no App. diction to entertain it. Maltbie, Conn. Proe., §32.
While it is true that did not defendants use language § set in forth 8003 did and, therefore, expressly comply proceeding with the manner of provided legal they in that section, the effect of what say appeal did do and did was to from the final judgment, only by appealing since from the latter they legal question they could raise the as to which they aggrieved. appeal asserted that were Their only. Irregularities was defective in form taking 74 objection appeal to this court waived if no are Bridge
is made. Bunnell v. Berlin Iron
66 Conn.
Co.,
75 West v. miss was void. Willard motu if it it suo v. Foss 847; 303, 306, 135 Conn. Hartford, signifi also It is A. 98. Foss, 502, 512, 136 105 Conn. judg appeal from was taken
cant that where pro then taken, been it should have ment when motion of the from the denial statute,3 vided just the reverse aside—a situation set the verdict that said at bar —we in the case involved appeal allowed the time filed within “when an assign proper accompanied rule and is the pur appeal fact that the mere error, ment of the judgment ports of the taken from the to be may disregarded.” L. Bunnell v. E. Markiavicus Transportation 914; 119 Conn. 175 A. A. n., 177 Hershowitz, v.
Dean Mag gay 158; A. 118 Conn. 262; Nikitko, A. 235; 118 Conn. Affinito, Valente v. A. 98. 115 Conn. Schaub,
Schmidt plaintiff’s the is based on motion to dismiss 'The jurisdiction. .ground This this court lacks alleged notwithstanding, contrary claim to the jurisdictional question. not involve a defect does of form amounts to no more than one The defect days challenge, requires if at within ten all, which filing appeal. § Practice Book 436. after the to dismiss is not void. Since the motion The long period time, was not filed until after that plaintiff has need not, waived defect. We pass upon motion to therefore, defendants’ wording appeal. amend the their main contention of the defendants on the
merits of the case because of the that, excessive- denying ness of the the court erred in their subject damages, set it aside. On motions to reasonably could have found Statutes, 1930, §5692. Rev. General *6 forty-one years age, facts: The died on decedent, asphyxiation November as the result of illuminating gas company escaped that had from a adjacent seeped main in the street and had into the companion kitchen where at he and a were seated table. Death from this is due to destruc- cause pain tion of red blood cells not associated very pres- with it. It is difficult for one to sense the type gas. ence of increases,, this As inhalation lapses disorientation of the victim follows until he into unconsciousness and eventual death. years prior
For each of the three to his the- death, annually. During part decedent earned about $2000 paving of that time he for worked concern as a pick operator and shovel man, and later, of a. During part, mechanical roller. another he worked for an aircraft concern as a fabricator. He also- jobs capable- undertook odd in his off hours. was a He employee, preferring Although, to work outdoors. unemployed he was at the time of his the- death, paving job concern had offered him a at a week $65 during part year asphalt when good could His health laid. and he had a life- expectancy thirty years. of about daugh- decedent had been married in 1944. A marriage ter was born of In the- decedent’s wife obtained a decree of divorce on the- ground cruelty. intolerable There was no evi- paid support dence that the decedent had to his- daughter they wife or to his after left him in Long 1951 and went to reside on Island. Dur- ing his married life, the decedent and his wife be- joint right came survivorship, owners, with of a one-family small they house in where Milford, were- living. then At the time of his death, no taxes on property paid years, had been for several and! ap- mortgage any, did if over the its value, than other pear. no estate left The decedent *7 special only proven litigation. The claim here of damages amount $647.34. bill in the were a funeral agree on instructions parties court’s the damages law question with the conformed of the Fitzgerald, recently Conn. 132 laid down Chase v. jury had returned A.2d After the 45
461, 470, 789. it to set aside moved the defendants their against ground, part, law. the that it was on the They urge modify the as stated in the law now us to suggestions for which meet various Chase case to they to take their failure contend. However, charge, exception de the the at the conclusion accepted as the law instructions fendants the court’s necessarily follows that verdict of the case. It unexcepted-to the rendered in accordance with contrary charge a verdict not Sons, law. R. F. Baker Co. v. Ballantine & See P. Reynolds v. 82; Maisto, 680, 683,
127 Conn. v. 504; Mansfield,
113 155 A. Fenton 405, 407, Conn. Episcopal A. Paul’s 343, 770;
82 73 St. 349, Conn. Lyon 145; A. Fields, Church v. 81 Conn. 72 v. If we Summers, 7 Conn. 408. are examine namely, grounds other motions, "the defendants’ against is ex the evidence and appraise grounds light cessive, we must those policy (cid:127)of the law of the case. This is that ordinar ily governs and we find no sound reason to us, alter it in the instant case. frequently past, damages
As we
said in
have
for death are awarded to meet
economic loss
although
sustained
estate,
decedent’s
some
may
.allowance
be made for the death itself. Farrell
Son,
v. L.
42
Inc.,
G. DeFelice &
78
Conn. 194 A. 300, 302, Electric 723; Lane v. United Light Kling & Water Co., 155; Conn. 35, 36, A. Broughel Torello, v. Conn. A. v. 987; 301, 306, 87 England Telephone New Southern Conn. Co., Damages 48 A. 751. are senti never based on family mental or values the loss caused to the Randolph, McElligott or relatives of the decedent. 61 Conn. A. 1094; Goodsell Hartford & N.H.R. did The Chase case change merely principles; these it set the- forth rule which the economic loss to a decedent’s estate can be ascertained. *8 damages
The amount of
for
recoverable in actions
peculiarly
province
jury.
death is
within the
of
Ry.
Hunt v. Central
Co.,
Vermont
In the the evidence, the we believe, reasonably could not have found that the decedent’s estate had suffered the economic loss set them, exclusive of a reasonable sum for the death itself. earning year, The decedent had been but a $2000 hardly any possibility amount sufficient to indicate large gross that he would have had excess of earnings personal living expenses. over and above his it is While true that from 1944 to 1951he exhausted, probability, earnings in all sup- much of his for the port daughter, of his wife and that factor must re- be provided them he since consideration moved from estate, support left no 1951. He after with no snch forty-one years. ex- although If the had lived for he might past what he perience indicative of his was employment, years ob- it less fruitful net his large very support viously furnished no basis purpose, ex- incorporated that for sum in the verdict for death itself award clusive of reasonable high is so The verdict for the bill of funeral $647.34. greatly the dece- it exceed interest on would average earnings thus and would
dent’s net annual perpetuity, annuity, to an amount, effect, Light- earnings. Nelson v. excess those Branford ing A. The & 303. Water Conn. justified grossly and cannot excessive
in reason. further claim of the defendants sending pleadings was in error in room is That was within the without merit. action court’s discretion. Ziskin v. Confietto, 137 Conn. Bridgeport 816; A.2d Proto v. Herald Cor
poration, 136 There nothing to indicate that the discretion abused. *9 judgment is error,
There is set aside and plaintiff, new trial is ordered unless within five judgment weeks from the date when this court Superior is shall rendered, file with the clerk of the Court a remittitur of of the amount of the $34,352.66 judgment verdict; but if such remittitur is filed, thereupon shall as to the balance
rendered it. The costs this on shall either event be in favor taxed the defendants. opinion In this C. and J., Js., Daly Inglis, Molloy,
concurred. (dissenting). J. I concur in all Wynne, said in the but opinion do this court agree fix should, effect, damages by remitti- ordering tur. My view that the verdict should be set aside.
Neil M. McKirdy, Administrator (Estate J. J. Cascio
Neil v. Peter McKirdy) et al. Wynne Inglis, J., Baldwin, C. O’Sullivan, Daly, Js.