127 A.2d 497 | Conn. Super. Ct. | 1956
In this case the jury returned a verdict for $1000 as damages caused plaintiff when he drank a bottle of Coca-Cola that had a cigar butt contained therein. Defendant now seeks to set this verdict aside.
In argument defendant made three vigorous attacks; first, that the Sales Act is applicable to this action, and that notice of the breach to the seller is an essential requirement. Defendant claims the evidence is inadequate on this point to sustain plaintiff's cause. It is true that in an action of this nature the plaintiff must plead and prove notice to the seller, and such notice is a condition precedent to recovery. DeLucia v. Coca-Cola Bottling Co.,
The evidence in this case was that on the day of the breach the plaintiff took the contaminated bottle to his employer, Robert H. Reardon, business manager of the Young Men's Christian Association in Hartford, who immediately phoned the defendant company advising it of what had happened and suggested it check into the matter. Next day one of defendant's representatives appeared at the Y.M.C.A. building and talked with the plaintiff, examined the bottle and obtained a report of the incident. It is fundamental that a jury are entitled to draw inferences from facts proved. In a civil case the proof of a material fact need not be conclusive. It is sufficient if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact. Dickson v. Yale University,
Defendant's second contention is that the plaintiff failed to establish that he to whom notice was claimed to have been given was an agent of the defendant, and cites DeLucia v. Coca-Cola Bottling Co.,
The final attack is that the verdict is excessive and should be set aside unless substantially reduced. The testimony was that after drinking the Coca-Cola plaintiff immediately became nauseated and vomited in the sink; that he suffered from nausea, nervousness and headaches for two to three weeks; that he was unable to eat or sleep normally during this period. He did not seek medical care or lose time from work for the reason, as stated on cross-examination, that he had four children to support and could not afford a doctor or lose time from work. There were no special damages offered at the trial.
Damages for personal injuries cannot be precisely fixed and is a matter peculiarly for the jury. However, a jury award should be scrutinized to see if it might reasonably be considered to have been the result of emotion rather than sound judgment, and whether the verdict is so far from fair and reasonable compensation as to shock the sense of justice. Goldberg v. Mertz,
Accordingly, the verdict is set aside unless within three weeks from the filing and receipt of this memorandum a remittitur of $500 is filed by the plaintiff. If such remittitur is filed, judgment shall enter for $500.