rejecting the claim that "that the jury, upon reconsideration, were powerless to change their verdicts on the issue of liability"Summary of this case from Rendahl v. Peluso
The purpose of the rule requiring prompt exceptions to a charge is to alert the court to any claims of error while there is still an opportunity for correction. For similar reasons, a party who wishes to challenge a court's failure to have the original verdict read before returning the jury for reconsideration must make timely objection. The verdicts originally returned by the jury, on a single form, were in favor of all three plaintiffs, two of whom were passengers In the car driven by T. The largest of the verdicts was In favor of T. The court returned the jury for reconsideration, Instructing them to determine whether "the amount is excessively liberal." The only exceptions taken by T with respect to this action were to the comment that the verdicts might be excessive and to the failure to accept the original verdicts and order them recorded. The jury returned new verdicts, also on a single form, finding for the passengers in the amounts originally reported but in favor of the defendant as to T. Held: 1. The exceptions taken were not sufficient to permit consideration of T's claim on appeal that the court should not have returned the jury for reconsideration without first having the verdicts read or his further claim that the Instructions were ambiguous because they did not indicate which of the verdicts the jury were to reconsider. 2. It was within the power of the court to return the jury for reconsideration and within the power of the jury, after the reconsideration, to change their verdicts on the issue of liability. There was ample evidence on which the jury could determine that T was chargeable with contributory negligence when he backed his car out of a driveway on the south side of the street to a position on the north side, generally facing west, where he was struck by the defendant's westbound car.
Argued January 7, 1960
Decided February 3, 1960
Action to recover damages for injuries to person and property, alleged to have been caused by the negligence of the defendant, brought to the Court of Common Pleas in Hartford County and tried to the jury before Siclor, J.; verdict and judgment for the plaintiffs Catherine Towhill et al. and in favor of the defendant as against the named plaintiff, and appeal by the named plaintiff. No error.
William R. Davis, for the appellant (named plaintiff).
Joseph G. Lynch, for the appellee (defendant).
The plaintiff Thomas Towhill was the owner and operator of an automobile in which the plaintiff Catherine Towhill and the minor plaintiff Kathleen Towhill were passengers. The car had just been backed out of a driveway on the south side of Cambridge Drive in East Hartford when it was struck, on the north side of the street, by the defendant's car, approaching from the east. The evidence as to the precise angle of the Towhill car at the time of the impact was conflicting, although it was headed in a general westerly direction.
The jury returned a verdict, on a single form, in favor of each plaintiff, the largest being in favor of the plaintiff operator. The court, after inspection, returned the jury to consider whether "the amount is excessively liberal." While the record lacks clarity, the jury were apparently supplied with new verdict forms to be used in the event that they decided to make any changes. After further deliberation, the jury returned new verdicts, also on a single form. Two of these were identical with the first verdicts. The third was in favor of the defendant as against the plaintiff operator. The three new verdicts were accepted and ordered recorded. The plaintiff operator appealed.
The sole exceptions taken were (a) to the comment of the court, when returning the jury, suggesting that the amount might be excessive and (b) to its action in not accepting the original verdicts and ordering them recorded, even if they were excessive, and disposing of the matter later by ordering, if necessary, a remittitur.
These exceptions did not call the court's attention to any ambiguity in failing to inform the jury which verdict or verdicts they were to reconsider. Nor did counsel voice any objection to the failure of the court, before it instructed the jury to reconsider, to have the verdicts read by the clerk and assented to by the foreman, in accordance with the practice approved in Gillette v. Schroeder, 133 Conn. 682, 685, 54 A.2d 498, and Ferris v. Hotel Pick Arms, Inc., 147 Conn. 72, 74, 157 A.2d 166, and cases cited.
The purpose of the rule (Practice Book 153) requiring that exceptions to a charge be taken "immediately after the charge is delivered" and that in taking an exception counsel "shall state distinctly the matter objected to and the ground of objection" is to alert the court to any claims of error while there is still an opportunity for correction, thereby avoiding the economic waste and increased court congestion caused by unnecessary retrials. The same purpose is the basis of our rule of practice requiring that timely objection be made to such action of the court as that here challenged, namely, failing to have the original verdicts read before returning the jury for reconsideration. See Glens Falls Ins. Co. v. Somers, 146 Conn. 708, 712, 156 A.2d 146, and cases cited. The plaintiff operator took no exception which raises any claim of error now addressed to the court's charge. Nor did he object to the court's procedure in returning the jury for reconsideration. On the contrary, he in effect indicated to the court that, other than in the two respects he specifically pointed out, he acquiesced in the court's action, including the giving of the supplemental charge. It follows that the claims of error are not properly before us. Ibid.; Practice Book 153.
There was ample support in the evidence for a conclusion by the jury that the plaintiff operator Was chargeable with contributory negligence. Such a conclusion would of course require a defendant's verdict as to him, and there is no merit in the claim of error based on the court's refusal to set aside the verdict as to him. Nor is there merit in the claim that the jury, upon reconsideration, were powerless to change their verdicts on the issue of liability. See Ryan v. Scanlon, 117 Conn. 428, 435, 168 A. 17; Marini v. Wynn, 128 Conn. 53, 57, 20 A.2d 400. Also without merit is the claim that the court had to accept the original verdicts without returning the jury for reconsideration. General Statutes 52-223; Giklette v. Schroeder, supra, 686.