Fox v. Fox

362 A.2d 854, 168 Conn. 592, 1975 Conn. LEXIS 990
Supreme Court of Connecticut·Decided June 17, 1975·Published·Cited by 20 cases

Opinion

Bogdanski, J.

This appeal arises from an action brought by the plaintiffs to recover damages for personal injuries allegedly caused by the negligence of the defendants, George C. Fox and Samuel R. Palmisano, whose respective vehicles collided at the intersection of West Putnam Avenue and the *593 Old Post Road No. 4 in the town of Greenwich. The jury returned a verdict for the plaintiffs against the defendant Palmisano only. Prom that judgment and the denial of his motion to set aside the verdict, Palmisano, hereinafter referred to as the defendant, has appealed to this court. The only issues briefed by the defendant concern the court’s charge to the jury. The remaining assignments of error are therefore considered abandoned. Pappas v. Pappas, 164 Conn. 242, 243, 320 A.2d 809.

“Claims of error addressed to the charge are to be tested by the claims of proof as they appear in the finding. Practice Book § 635; DePaola v. Seamour, 163 Conn. 246, 249, 303 A.2d 737; Intelisano v. Greenwell, 155 Conn. 436, 444, 232 A.2d 490.” Conlon v. G. Fox & Co., 165 Conn. 106, 108, 328 A.2d 708. The claims of proof reveal that on July 19, 1968, at 6:14 p.m., the plaintiffs were passengers in an automobile operated by the defendant Pox in an easterly direction on West Putnam Avenue. At the same time, the defendant Palmisano "was operating his motor vehicle westerly on West Putnam Avenue with the intent to make a left turn onto Old Post Eoad No. 4. As the Palmisano vehicle was in the process of making a left turn onto Old Post Road No. 4, a collision between the two vehicles occurred.

The defendant requested the court to charge the jury as follows: “1. If two parties each contribute to a wrong against the plaintiff, the proximate cause is the wrongful act in which they concurrently participate. Although each operator acted independently of the other, so far as purpose and intent are concerned, if the negligence of each concurred and cooperated with the other in the production of *594 a single and injurious result, the plaintiff is entitled to recover from either party or both parties so concurring in the production of the injurious result. ... 2. Where a plaintiff is harmed by concurrent acts of negligence of joint tortfeasors, the degree of culpability as between the concurrent wrongdoers is immaterial, and both are responsible for the whole injury.”

The trial court adopted the first request and charged the jury in the specific language of that request. The court refused, however, to adopt and charge the second request. The defendant took exception to the failure to charge the second request.

The defendant now raises the claim that the court erred in charging in the specific language of the first request. He acknowledges that where the negligence of two persons concurs to produce a single result, a plaintiff can elect to sue either or both. But he argues that the court’s charge was an inaccurate statement of the law where the plaintiffs have, in fact, sought recovery from both tortfeasors; that the court should have charged that a verdict must be returned against both defendants if the negligence of each was a substantial factor in producing the plaintiffs’ injuries; and that the language used by the court was erroneous and resulted in an injustice to him.

A party may not complain of an alleged error in a charge to the jury when he himself has specifically requested that instruction. Tough v. Ives, 162 Conn. 274, 287, 294 A.2d 67; Andrews v. Dougherty, 96 Conn. 40, 46, 112 A. 700; Maltbie, Conn. App. Proc. § 96, p. 117. “Since, by his request to charge, . . . *595 [the defendant] induced the trial court to instruct the jury as it did, he is not now in a position to press his claim that the court erred in doing so. Rinalli v. Kurtz, 117 Conn. 165, 170, 166 A. 916.” Hofacher v. Fox, 142 Conn. 179, 185, 112 A.2d 217.

Moreover, the nature of the present action precludes a showing of prejudice upon appeal. The plaintiffs brought this action against the two defendants as joint tortfeasors and claimed that both were liable jointly and severally. The plaintiffs have chosen to accept the judgment absolving the defendant Fox of liability. A plaintiff may elect to satisfy his damages against any culpable defendant since there is ordinarily no contribution between joint tortfeasors. Rose v. Heisler, 118 Conn. 632, 633, 174 A. 66. See Preferred Accident Ins. Co. v. Musante, Berman & Steinberg Co., 133 Conn. 536, 538, 52 A.2d 862. A codefendant cannot complain that a charge is too favorable to another codefendant, since, if both are liable, they are liable jointly and severally. Griswold v. Connecticut Co., 131 Conn. 248, 250, 38 A.2d 676. It thus follows that the defendant is in no position to complain.

With respect to the claimed error in the trial court’s refusal to charge the second request, an examination of the record discloses that the trial court adequately covered the legal issue brought to its attention by this request when it instructed the jury on the issue of proximate cause.

Free access — add to your briefcase to read the full text and ask questions with AI

Fox v. Fox, 362 A.2d 854, 168 Conn. 592, 1975 Conn. LEXIS 990 (Colo. 1975).

362 A.2d 854 (Fox v. Fox) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Satula v. Yale University, No. Cv-97-0404649-S (Dec. 7, 1998)
1998 Conn. Super. Ct. 14263 (Connecticut Superior Court, 1998)
Byron v. Safeco Insurance Co., No. Cv92 30 00 82 S (Dec. 15, 1997)
1997 Conn. Super. Ct. 13538 (Connecticut Superior Court, 1997)
Cooper v. Delta Chi Housing Corp.
674 A.2d 858 (Connecticut Appellate Court, 1996)
Lepri v. Martinez, No. Cv 90003319s (Sep. 1, 1995)
1995 Conn. Super. Ct. 10469 (Connecticut Superior Court, 1995)
Bradford v. Herzig
638 A.2d 608 (Connecticut Appellate Court, 1994)
Weidl v. Gfeller, No. Cv88-0351404 S (Sep. 3, 1992)
1992 Conn. Super. Ct. 8425 (Connecticut Superior Court, 1992)
Fortin v. Bok, No. Cv88-248237 (May 31, 1991)
1991 Conn. Super. Ct. 4040 (Connecticut Superior Court, 1991)
Frederick v. General Equities, No. Cv 90-0440834s (Feb. 13, 1991)
1991 Conn. Super. Ct. 1127 (Connecticut Superior Court, 1991)
Babcock v. New Haven Suzuki, Inc., No. 25 99 99 (Oct. 18, 1990)
1990 Conn. Super. Ct. 3272 (Connecticut Superior Court, 1990)
Stefano v. Smith
705 F. Supp. 733 (D. Connecticut, 1989)
Gionfriddo v. Gartenhaus Cafe
546 A.2d 284 (Connecticut Appellate Court, 1988)
State v. Shipman
486 A.2d 1130 (Supreme Court of Connecticut, 1985)
Cruz v. Periu
486 A.2d 666 (Connecticut Superior Court, 1984)
Donald F. Pfeiffer v. William S. Silver
712 F.2d 799 (Second Circuit, 1983)
Gomeau v. Forrest
409 A.2d 1006 (Supreme Court of Connecticut, 1979)
Healy v. White
378 A.2d 540 (Supreme Court of Connecticut, 1977)
State v. Grasso
374 A.2d 239 (Supreme Court of Connecticut, 1977)
Marko v. Stop & Shop, Inc.
364 A.2d 217 (Supreme Court of Connecticut, 1975)