142 A. 737 | Conn. | 1928
This case is an appeal to the Court of Common Pleas at Waterbury from the judgment of a justice of the peace to recover the balance of the purchase price of six cows sold by the plaintiff to the defendant, the amount involved being less than $100. The case was put to the jury and occupied in its trial one day and the larger part of another. The verdict was for $92.25. To try this case cost the State probably at least $400. The interest of the State in the waste involved, the large amount of time taken in the trial to the jury and the liability to congestion in jury business in our larger counties, make it necessary, from a practical standpoint, that cases of this character should be tried to the court rather than the jury. Counsel should use their utmost endeavor to prevail upon clients to have their appeals from justices of the peace tried to the court rather than to the jury.
The defendant moved to set the verdict aside because it was against the evidence, and because the court inadvertently placed too great a burden upon the defendant. The court set aside the verdict upon the ground that "although in the instant action the court charged the jury to disregard improper remarks and comments of counsel for the plaintiff and of counsel for the defendant, made during the argument on the case, I now feel that the same were too prejudicial to have permitted a fair trial of the matters in issue." The ground upon which the court set aside this verdict was not one of the grounds upon which the defendant's motion was predicated. Neither of the counsel claim, or could claim successfully, that the ground for setting aside a verdict because it was against the evidence included within it the claimed prejudice because of improper remarks and comments of counsel. The appellant puts his appeal upon the claim that the court had no right to set the verdict aside for any *288
other reason than those specified in the motion, and that the setting aside of the verdict was an unreasonable exercise of its discretion. The appellee's position is, that the court acted within its legal discretion in setting aside the verdict, and that so long as the record does not disclose what language was used by counsel the court has nothing before it "which enables it to say that the trial court abused the legal discretion with which it was invested." Counsel for the appellant misconceives the extent of power vested in the court to set aside a verdict. It is not limited in its action to the ground or grounds stated in the motion. It has the inherent power to set aside a verdict where it finds it has made, in its instructions, rulings on evidence, or otherwise in the course of the trial, a palpable error which was harmful to the proper disposition of the case and probably brought about a different result in the verdict. Such power is indispensable to the proper administration of justice, otherwise the court would be powerless to undo the wrong it had unintentionally done in the course of the trial although it had become aware of the error it had made in time to right the wrong. We decided in Brown v. New Haven TaxicabCo.,
The ground for setting aside the verdict in this motion, that it placed too great a burden upon the defendant, can mean but one thing, that this burden was imposed either as a result of the rulings on evidence, or otherwise, in the course of the trial, or of the instructions to the jury. We do not understand that counsel for the appellant persist in this claim. Let us examine this record with a view to ascertaining whether, under our procedure, opportunity is given us on this appeal to consider the error raised by the appeal as to whether the court exercised its discretion unreasonably in setting aside the verdict. Errors based on rulings on evidence in a jury case cannot be determined on appeal by us without having before us the findings of facts claimed to have been proven by the respective parties and the special finding of facts called for by § 4, p. 307 of Connecticut Practice Book. Instructions to the jury cannot be considered by us unless we have before us the findings of facts claimed to have been proven by the respective parties. Neither can any other rulings made in the course of the trial or while the case is in the hands of the trial court for judicial action, be considered by us without a finding of the facts surrounding the ruling. Without that we have nothing upon which to predicate a decision. A finding of facts showing the facts as claimed to have been proven, and the precise language used which the court held to be improper as nearly as the same can be given, together with such of the issues as were involved in the language used, with a fair statement of facts showing the resulting prejudice or the reverse from the use of this language, is essential to our determination as to whether the use of the language was improper and legally harmful. Farrington
v. Cheponis,
A search of the many cases where the subject of improper remarks of counsel formed a part of the appeal before this court fails to disclose but a single instance where there has not been some form of a finding of the facts as to the improper remarks. Nor do we find an instance where the claim has been made that this court had the right to accept as facts on the appeal the statements of fact in the charge to the jury and determine upon them the question, whether the trial court has exercised its discretion unreasonably. Counsel for the appellee do not go so far as to assert the right of this court to take the statement of the facts as found in the charge as a statement of a finding upon appeal. Their position is, we repeat, that the court was acting within its legal discretion, and that since the record does not disclose the improper language used by counsel the court has nothing before it "which enables it to say that the trial court abused the legal discretion with which it was invested." This is an essentially sound position.
We cannot pass upon the court's exercise of its discretion in setting aside this verdict, since in the absence of a finding stating the improper remarks and showing their harmful effect we have no available basis for determining what the improper remarks were, or what their effect was upon the verdict reached, or whether the court exercised its discretion unreasonably or wisely.
There is no error.
In this opinion the other judges concurred.