Tough v. IvesTough v. Ives
- Reporters:
- , ,
- Before:
- Loiselle
The plaintiff, Patricia Tough, brought this action in two counts to recover damages for personal injuries alleged to have been due to the breach of a statutory duty of the defendant state highway commissioner. The following is a brief, procedural history of the action. The trial court sustained a demurrer to the first count prior to trial. A so-called second complaint, filed by the plaintiff’s
In support of his appeal, the defendant claims error in the action of the trial court in sétting aside the verdict. In the absence of a statement in the finding of the trial court’s conclusions with respect to the verdict, we consult its order setting aside the verdict and ordering a new trial to ascertain the basis of its ruling. In its order setting aside the verdict, the court adopted the reasoning of its memorandum of decision on the motion for mistrial. See Marin v. Silva, 156 Conn. 321, 324, 240 A.2d 909; Teitelman v. Bloomstein, 155 Conn. 653, 659, 236 A.2d 900. The memorandum stated the trial court’s belief that the so-called “Chip Smith” charge (State v. Smith, 49 Conn. 376, 386) obstructed a fair rendering of a unanimous verdict and interfered “with the jury’s freedom of deliberation.”
In order to test that judgment in its proper, factual context we look to the finding.
“The Court: I wonder, Miss Baggish, whether you understood the question. Was this verdict unanimous, Mr. Foreman, as far as you knew?
Mr. Giansanti: Yes, Your Honor.
The Court: Then what did you mean, Miss Baggish, by saying you were for the lady?
“Miss Baggish: Well, you told us to try to come to a unanimous conclusion by weighing the facts and perhaps considering that the other jurors had more in their favor and in that event I went along with the jury.
The Court: So you did vote finally for the defendant?
Miss Baggish: Bight.
Miss Baggish: That is right.
The Court: But you now finally do vote for the defendant?
Miss Baggish: Yes.
The Court: Verdict is accepted and recorded.
Mr. Koskoff: May I have an exception, Your Honor?
The Court: Yes. Once again ask the whole group.
The Clerk: Ladies and gentlemen of the jury, harken to your verdict as accepted and ordered recorded by the Court, case number 143825, Patricia Tough, et al versus Howard S. Ives, State Highway Commissioner, dated March 14, 1968, defendant’s verdict, in this case the jury finds the issues for the defendant, signed by the foreman, James E. Griansanti. Ladies and gentlemen of the jury, is this your verdict? So say you all.
The Jury: Yes.”
The court followed approved procedures in receiving the verdict. The clerk read the verdict, the jury assented to it, the court accepted it and ordered it recorded. Ferris v. Hotel Pick Arms, Inc., 147 Conn. 72, 74, 157 A.2d 106.
Since
State
v.
Smith,
49 Conn. 376, 386, we have consistently reaffirmed our approval of a supplementary charge to encourage a verdict, in both criminal and civil cases, in the face of an apparent deadlock.
Szlinsky
v.
Denhup,
156 Conn. 159, 162, 239 A.2d 505; note, 19 A.L.R.2d 1257, 1258. We repeat the language in
State
v.
Walters,
145 Conn. 60, 63-64, 138 A.2d 786, cert. denied, 358 U.S. 46, 79 S. Ct. 70, 3 L. Ed. 2d 45: “The attack on the charge from
State
v.
Smith
[49 Conn. 376, 386] on the ground that it amounted to a direction that the verdict be
It is apparent from the trial judge’s memorandum of decision that his sole ground for setting aside the verdict and ordering a new trial was his belief that the “Chip Smith” charge was prejudicial. The plaintiff, however, further claims that the court erred in interrogating the juror, as recited above, and requiring an explanation for her dissent, citing
Bruce
v.
Chestnut Farms-Chevy Chase Dairy,
126 F.2d 224, 225 (D.C. Cir.), and
Patterson
v.
Rossignol,
245 A.2d 852, 855 (Me.). These cases envision heavy-handed conduct which coerces the juror or ignores his decision. In the
Bruce
case, for example,
Neutral inquiry by the trial judge as to the meaning of a juror’s response is not erroneous. See United States v. Brooks, 420 F.2d 1350, 1353 (D.C. Cir.) Smith v. S & F Construction Co., 62 Wash. 2d 479, 383 P.2d 300; 5A Moore, Federal Practice (2d Ed.), p. 2239; notes, 71 A.L.R.2d 640, 25 A.L.R.3d 1149. Only when such inquiry is coercive or seeks explanations, motives or information about occurrences in the jury room should it be found objectionable. The action by the trial court here at issue is wholly different. In the case at bar, there was no argument, by either court or counsel, with the juror. Nor did the court require an explanation from the juror as to whether she changed her mind or the reasons therefor. The questions asked sought only to elucidate the meaning of her statement; there was no further inquiry. When the juror stated that her verdict was for the defendant, there was no reason to send the jury back for further deliberations and the court was not in error in accepting the verdict.
Absent coercive circumstances surrounding the charge, which we do not find here, we are satisfied that the so-called “Chip Smith” charge does not work to deprive a party of his right to a unanimous verdict rendered on the conscientious consideration of each juror. The court, therefore, was in error in setting aside the verdict and ordering a new trial. As this error is dispositive of the defendant’s claim for directing reinstatement of the verdict, his other assignments of error are not considered.
The plaintiff claims that even if the defendant prevails in his appeal, a new trial should be ordered due to errors of the court as outlined in the assign
Relevant to the consideration of the assignments of error, which have not been abandoned, are these claims of proof by the plaintiff. The plaintiff was a passenger in the car of Rachel Koziba when she left Cromwell to travel to New Britain on December 5, 1964. En route, Rachel Koziba entered the traveled surface of a bridge, which was also a state highway, on route 72, lying about seven tenths of a mile east of the route 71 overpass, and her car -spun around on ice, which covered the entire surface of the bridge, and hit a guardrail. The proximate cause of the spinning was the icy surface of the bridge, constituting a defect in the highway, which was not reasonably safe for traffic. At about 2:15 p.m., Walter W. Wagner was traveling on route 72 and, seeing the Koziba car stopped on the highway, tried to avoid it. Because of the ice on the bridge, he could not prevent a collision, but his vehicle slowed sufficiently to strike the Koziba ear only slightly. The proximate cause of Wagner’s colliding with the Koziba oar was the icy condition of the bridge. As a result of the collision, the plaintiff is a quadraplegic and has suffered devastating injuries. At 11 a.m. on December 5, 1964, the road surface of the westbound portion of the bridge on route 72 was not sanded and was not reasonably safe for travel. From 11 p.m. on December 4, 1964, until 3 p.m. on December 5, 1964, the temperature was 32° F. From midnight, December 4, 1964, until 3 a.m. on Decern
At the start of the trial, the plaintiff’s counsel reported to the court that a companion case, brought by the plaintiff at about the same time as this action, had been .settled and withdrawn. The complaint in that case charged the operators .of the two cars involved in the accident, Koziba and Wagner, with actionable negligence, proximately causing the injuries for which she now seeks recovery from the defendant. The defendant relied on the plaintiff’s receipt of $39,450 from the operators as a special defense and the plaintiff admitted partial satisfaction of her claim in that amount. During the course of the trial, the plaintiff denied any knowledge of the specific claims of negligence made against the operators, stating: “I left everything up to my lawyer.” The court admitted into evidence the complaint in the companion case as an admission that the two operators were at least concurrently responsible for the plaintiff’s injuries. The plaintiff objected and took an exception and, on admission of the complaint, offered as evidence the covenants not to sue which she had executed when she received the $39,450. The court excluded the covenants and the plaintiff took an exception.
The court properly admitted into evidence the complaint from the companion action. It was admissible as an admission because it is a statement by a party in a prior action to which he was also a party. Kucza v. Stone, 155 Conn. 194, 197, 230 A.2d 559; Hill v. Small, 129 Conn. 604, 605, 30 A.2d 387; Bartolotta v. Calvo, 112 Conn. 385, 395, 152 A. 306; Wilcox v. Downing, 88 Conn. 368, 375, 91 A. 262; Connecticut Hospital for Insane v. Brookfield, 69 Conn. 1, 5, 36 A. 1017. The plaintiff seems to agree with this position, claiming only that it should not extend to a plaintiff’s conflicting allegations, in nearly contemporaneous actions, against two or more defendants who can be liable only in the alternative. We have found no authority for this proposition and the plaintiff has offered none. The rule concerning the admissibility into evidence of admissions in pleadings is too well established in law and sound in reason to be modified .as the plaintiff urges. The time has passed when allegations in a pleading will be treated as mere fictions, rather than “as statements of the real issues in the cause and hence as admissions of the parties.” 2 Jones, Evidence (5th Ed.), p. 693; see also 4 Wigmore, Evidence (3d Ed.), pp. 52-54.
It is not clear at what point in the trial the plaintiff first attempted to introduce into evidence the two covenants not to sue, but the second attempt occurred after the defendant had introduced the complaint of the companion case. The plaintiff pressed for this admission on the ground that, as
“When the court charged the jury on the issue of sole proximate cause, it discussed the claim of the defendant that the complaint in the companion case was an admission of at least concurring negligence by the two operators. The court instructed that the admission was not binding on the jury and stated: “ [ Y] ou may consider it and give it whatever weight you think it should deserve.” The court then instructed the jury that a compromise in the companion case had no legal effect on the present suit and that it was not an admission of liability by the operators of the cars involved. This charge complied substantially with the request to charge. The court terminated this portion of the charge by stating: “So this compromise under the so-called covenant not to sue that has been pleaded has no binding or probative force upon you. You may weigh the claims made in that ease by Patricia Tough through her counsel, but the mere fact of compromise or settlement does not in any way decide this case. You may give it whatever weight you want to.” The plaintiff claims that the last, quoted sentence destroyed the effect of the otherwise correct instruction on compromise. We do not agree with this claim. It is apparent from the context of the sentence that the court referred to the claims made in the companion case by Patricia Tough through her counsel and not to the covenants not to sue. The antecedent of “it” in the sentence at issue is easily traced to the immediately preceding sentence, by the parallel language of the initial and the subsequent reference: “you may weigh the claims” and
The plaintiff also claims that the jury should not have been informed of any payment from the settlement of the covenants not to sue and that the practice now followed in our courts concerning payments under covenants not to sue (see
Bonczkiewicz
v.
Merberg Wrecking Corporation,
148 Conn. 573, 578, 172 A.2d 917) is in error. The plaintiff argues that the jury should be unaware of any payments; that, when the verdict is rendered, the amount received under a covenant not to sue should be subtracted by the court; and that this reduced sum should be entered in the judgment. When the defendant had pleaded the existence of payments under the covenants not to sue, the plaintiff replied and admitted such payments. The record discloses that the plaintiff did not except to this portion of the charge or make a written request that the charge omit any mention of payment on the covenants not to sue. Consequently, we do not consider this claimed error.
The remaining attack of the plaintiff on the charge is that the court failed to relate properly the application of the law to her contentions of fact in the case. The primary purpose of the charge is to assist the jury in applying the law correctly to the facts which they might find to be established. Vita v. McLaughlin, 158 Conn. 75, 77, 255 A.2d 848; Worden v. Francis, 153 Conn. 578, 579-80, 219 A.2d 442. The extent to which a court should comment on the evidence is largely a matter within its sound discretion. Worden v. Francis, supra, 580; Morosini v. Davis, 110 Conn. 358, 363, 149 A. 371. In some cases, where the issues are complicated, peculiar, or capable of diff ering conclusions, comment by the court is necessary. On the other hand, if the issues are clearly enumerated and the argument of counsel has fairly presented the case, a discussion in the charge of the details of the evidence may defeat its proper purpose. Corrievau v. Associated Realty Corporation, 122 Conn. 253, 256, 188 A. 436; Heslin v. Malone, 116 Conn. 471, 478, 165 A. 594.
The plaintiff submitted requests to charge that cover seventeen pages of the record. Among the requests the plaintiff now claims the court should have given are those which concern details of the evidence tending to prove her claim that the bridge
On the issues of reasonable care and notice, the plaintiff requested the court to charge: (1) That the question was not only whether the defendant’s agents sanded the bridge, but “whether they did it properly and sufficiently,” and whether reasonable
Another error in the charge claimed by the plaintiff is in the instruction on the burden of proof con
Finally, in examining the remaining requests to charge not already considered, there is no doubt that if the court had followed all the requests that the plaintiff urged, with their detailed comment on particular evidence favorable to the plaintiff, it would have .been indulging in an argumentative presentation of the claims of only one side. This it should not do. Ladd v. Burdge, 132 Conn. 296, 299, 43 A.2d 752; Bundy v. Capitol National Bank & Trust Co., 124 Conn. 309, 314, 199 A. 561; Tuckel v. Hartford, 118 Conn. 334, 337, 172 A. 222. The court did not err in failing to review the evidence in the detail requested by the plaintiff.
The plaintiff attacked eight rulings on evidence, the failure to charge according to the plaintiff’s request as stated in twenty-nine paragraphs of the finding, the denial of a motion for mistrial as set out in twenty-nine paragraphs of the finding, the failure to find according to two paragraphs of the plaintiff’s draft finding, and the finding of two paragraphs
The plaintiff’s two final assignments of error are the sustaining of the defendant’s demurrer to the first count of the complaint in this action and the finding that this judgment was rendered two years before trial. That count is couched in allegations of negligence against the defendant, with the added claim that Special Acts 1965, No. 349, gave the plaintiff and her father the right to bring an action in which the concurring negligence of anyone other’ than the plaintiff or her father would not be a defense. This alleged right is enjoyed by no citizen other than the plaintiff and her father. The state demurred on the ground that the count violated article first, § 1 and article second of the constitution of the state of Connecticut and the fourteenth amendment of the constitution of the United States. The court (Pastore, J.) sustained the demurrer and the trial judge (Wright, J.), at the commencement of trial, rendered judgment for the defendant on the first count. To the extent that the finding states that judgment on the first count was rendered two years before trial, it is in error; the finding is corrected to reflect the time at which the trial judge rendered judgment.
A preliminary question raised by the plaintiff is whether the defendant, representing the state, has standing to attack the constitutionality of the special act. We held in
Ducharme
v.
Putnam,
161 Conn. 135, 139, 285 A.2d 318, that a city, although a ¡subdivision of the state, has sufficient interest and standing to raise constitutional issues in a case where it was properly in court on nonconstitutional
The questions which involve article first, § 1 of the constitution of the state of Connecticut and the fourteenth amendment of the constitution of the United States, which prohibit the states from denying to any person the equal protection of the laws, are dispositive and may be considered together. Proctor v. Sachner, 143 Conn. 9, 17, 118 A.2d 621; Lyman v. Adorno, 133 Conn. 511, 515, 52 A.2d 702.
Article first, § 1 of the constitution of Connecticut declares: “All men when they form a .social compact, are equal in rights; and no man or :set of men are entitled to exclusive public emoluments or privileges from the community.” The broad provisions of article third, § 1 of our constitution vest the legislative power in the General Assembly, but that power is subject to the limitation that an act which serves no other purpose than an individual’s gain or profit goes beyond the power of that body to enact and is necessarily void. Only if an act serves some public purpose can it be constitutionally sufficient. Lyman v. Adorno, supra. Because the elements of a public purpose vary as much as the circumstance in which the term is appropriate, each case must be determined on its own peculiar facts. Barnes v. New Haven, 140 Conn. 8, 15, 98 A.2d 523. In general terms, if a legislative act will promote the welfare of the state, it is for a public purpose. Lyman v. Adorno, supra, 517.
The legislative act, moreover, may not establish classes that have no reasonable relation to any per
Differences of treatment under law should not be approved when they are based on classifications unrelated to the legislative purpose. Special Act No. 349 of the 1965 session of the legislature created a right of action based on common-law negligence for the sole benefit of the plaintiff and her father. It established a right available only to two persons, designated by name. Equal protection of the laws is absent when Patricia Tough is allowed to recover on a basis unavailable to another incurring identical injuries in an identical manner and differing from her in name only. Although we are not unmindful of the seriousness of the plaintiff’s injuries, we cannot escape the conclusion that the right created was purely personal, without public purpose either expressed or implied and based on an unreasonable classification.
Even though the right granted to the plaintiff is deemed to be personal, the plaintiff claims that such right can be granted when the circumstances warrant. The plaintiff cites
Wheeler’s Appeal,
45 Conn. 306, 318;
Sanger
v.
Bridgeport,
124 Conn. 183, 189, 198 A. 746;
Lyman
v.
Adorno,
133 Conn. 511, 528, 52 A.2d 702;
State ex rel. Higgins
v.
Civil Service Commission,
139 Conn. 102, 90 A.2d 862;
Tolisano
v.
State,
19 Conn. Sup. 266, 270, 111 A.2d 562; and
Garrett
v.
State,
20 Conn. Sup. 496, 498, 141 A.2d
The plaintiff claims that, due to the extremely severe injuries which she suffered, her case properly falls within a special classification which the legislature could lawfully recognize by enacting a statute to aid her in her action against the state. The weakness of this argument is that no such classification was intended. Not all persons suffering severe injuries were to benefit, only the plaintiff. The act is simply a grant of a personal privilege greater than that allowed to the public at large. Special Acts 1965, No. 349 is contrary to article first, § 1 of the constitution of Connecticut and is of no effect. The court acted properly in sustaining the demurrer and rendering judgment for the defendant on the first count.
There is error and the case is remanded with direction to render judgment for the defendant.
In this opinion the other judges concurred.