Hull v. Douglass , 79 Conn. 266 ( 1906 )

The trial court in denying the defendant's motion for a nonsuit exercised a discretion which cannot be reviewed upon appeal. General Statutes, §§ 761, 762; Bennett v. Agricultural Ins. Co., 51 Conn. 504, 512.

We find nothing in the record to justify the suspicion that the jury were influenced by prejudice, corruption, or partiality; on the contrary, it seems too plain for argument that any jury, having heard the testimony reported to us and considered it in connection with an appropriate charge of the court, might reasonably and properly reach the conclusions of fact certified by the verdict of the jury in this case. We cannot, therefore, affirm error of the action of the trial court in denying the defendant's motion for a new trial because the verdict was against the evidence.Burr v. Harty, 75 Conn. 127, 130, 52 A. 724. The verdict is not unlawful by reason of the amount of damages assessed. The jury having found that the plaintiff was attacked by a vicious bull belonging to the defendant and by him recklessly permitted to be at large, whereby the plaintiff's life was put in peril and painful bodily injuries inflicted of a nature and extent requiring medical and surgical attendance and disabling him for some time, it cannot be said that an assessment of $600 damages by the jury for such wrong and injuries necessarily implies that the verdict was influenced by undue sympathy or corruption. In injuries of this character there can be no certain and definite measure of damages, and the amount in each case must depend largely upon the honest judgment of the trier. The decision of the trial judge in this case, that a new trial should not be granted on the ground that the damages were excessive, should have been accepted as decisive.Rogers v. Fitzgerald, 72 Conn. 731, 43 A. 551.

The court properly refused to charge the jury in conformity with each of the defendant's requests to charge. The request that the court direct the jury to return a verdict for the defendant upon the undisputed testimony of the plaintiff, was objectionable for several reasons, and especially because the undisputed testimony of the plaintiff could only be controlling in establishing or failing to establish the material facts in issue by reason of the inferences of fact the jury might properly draw from that testimony in connection with other facts supported by the evidence. The claim involved in the request that the court instruct the jury that the plaintiff must show, as a condition precedent to a recovery, that his inclosure was surrounded by sufficient and legal fences, is manifestly unsound in view of the facts in issue under the pleadings. General Statutes, §§ 1364, 4079, 4080; Hine v. Wooding,37 Conn. 123, 126; Barnum v. Vandusen, 16 id. 200; 1 Sw. Dig., s. p. 551. The court did charge the jury in relation to the question of fences with sufficient fullness and general accuracy. No exception to the charge on this point is taken. The remainder of the requests to charge attempts to state in separate paragraphs portions of the law defining contributory negligence, and substantially asks the court to instruct the jury that by reason of each several statement contained in these paragraphs their verdict must be for the defendant. This request as framed by the defendant was objectionable, and the court properly declined to charge the jury in the language of the request.Marlborough v. Sisson, 23 Conn. 44, 54; Seeley v. Litchfield, 49 id. 134, 138. The court did charge the jury upon the law of contributory negligence and ordinary care, with substantial accuracy, and as fully as the state of evidence and appropriate claims of the parties required. This was a sufficient compliance with the defendant's requests.Stern v. Simons, 77 Conn. 150, 153, 58 A. 696; State v.Rathbun, 74 Conn. 524, 527, 51 A. 540. No exception is taken in the appeal to the charge as given on this point.

The court did not err in charging the jury as set forth in the fourth, fifth, and sixth assignments of error. The facts alleged in the complaint imply such misconduct on the part of the defendant as makes this a proper case for "exemplary damages," if the allegations are true. List v. Miner, 74 Conn. 50, 55, 49 A. 856. While the damages, not exceeding the plaintiff's expenses in the litigation of the suit, which the jury may award in actions of tort like the one before us, are in fact and effect compensatory and not punitive, yet they are in practice variously termed exemplary, punitive, vindictive, or smart money; and the charge of the court is not erroneous merely because, in correctly telling the jury when they may take into consideration such expenses, it speaks of the damages as commonly called by one or the other of these terms. Hanna v. Sweeney, 78 Conn. 492,62 A. 785; St. Peter's Church v. Beach, 26 Conn. 355; Welch v.Durand, 36 id. 182; Burr v. Plymouth, 48 id. 460; Maisenbacker v. Society Concordia, 71 Conn. 369, 42 A. 67. The charge in this case did not, as it properly should, in express terms instruct the jury that the damages they might award under the name of exemplary damages must be limited in amount by the amount of the plaintiff's expenses less the taxable costs in the suit. We think, however, that the charge in view of all the circumstances appearing in the record did in effect so advise the jury, and that there is nothing in the charge to support a different implication, and therefore the exception taken to the charge in Hanna v. Sweeney, 78 Conn. 492, 495, 62 A. 785, does not apply to the charge in this case. The passage of the charge in which the court states to the jury that in determining compensatory damages "you may consider properly any mental or physical suffering which he had endured in consequence of it, or any expense that he was put to, if any expense has been shown," in connection with the other parts of the charge, did not mislead the jury into the belief that the plaintiff, a minor, could in this action recover expenses incurred on his behalf by his father. Upon this point the charge as a whole leaves no room for misconception. The court in commenting on the testimony of Giles Hull did not, as claimed by the defendant, misstate the evidence. In so far as the charge implied any opinion of the court as to the weight of evidence, it was properly expressed.

The rulings of the court upon the admission of testimony, as detailed in the finding, mainly relate to the discretionary control of cross and redirect examination, are substantially correct, and in no instance harmful to the defendant. They do not call for special mention.

As to the last assignment of error, the plaintiff's counsel had the right to state in argument, and emphasize, the fact that the defendant, present in court during the trial, had failed to testify in denial of any of the testimony produced by the plaintiff, and that no explanation was offered on his behalf of his failure to testify. Wilson v.Griswold, 79 Conn. 18, 63 A. 659. It was fairly within the latitude allowed to counsel in argument to call it a refusal on the defendant's part to take the stand in his own defense.

There is no error in the judgment of the Court of Common Pleas.

In this opinion the other judges concurred.