Young v. Falk

643 A.2d 1314, 34 Conn. App. 852, 1994 Conn. App. LEXIS 239
CourtConnecticut Appellate Court
DecidedJune 28, 1994
Docket12430
StatusPublished
Cited by7 cases

This text of 643 A.2d 1314 (Young v. Falk) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Young v. Falk, 643 A.2d 1314, 34 Conn. App. 852, 1994 Conn. App. LEXIS 239 (Colo. Ct. App. 1994).

Opinion

Lavery, J.

The plaintiffs1 appeal from the judgment of the trial court accepting the jury’s verdict in favor of the defendants in the plaintiffs’ chiropractic malpractice suit.2 On appeal, the plaintiffs claim that the trial court improperly charged the jury and refused to set aside the jury’s verdict. We affirm the judgment of the trial court.

In June, 1987, Anne Young, the named plaintiff, sought chiropractic treatment from the defendant to alleviate intermittent dizziness, vertigo and soreness in her neck and shoulders. Over a period of twelve days, the defendant treated her several times with cervical manipulation, cervical traction, massage and ultrasound. After her condition did not improve, the named plaintiff consulted a neurologist who recommended against further chiropractic treatment. She returned, however, to the defendant two days later for further treatment. On that occasion, the defendant used only cervical traction, not manipulation. Approximately thirty-six hours later, the named plaintiff suffered a brain stem stroke that left her unable to work or to drive a car.

[854]*854The complaint alleged that the defendant had been negligent in testing, diagnosing and treating the named plaintiff. Specifically, the plaintiffs asserted that the defendant had (1) failed to conduct and record properly a test used to determine whether a patient has a high risk of a stroke, (2) misdiagnosed her condition and used contraindicated treatments, and (3) failed to warn her about the risks and obtain informed consent to the procedures.

The plaintiffs also sued Susan Falk, the defendant’s wife, alleging that the defendant fraudulently transferred his interest in his office building to his wife after learning of the plaintiffs’ suit. They also claimed that the transfer evidenced the defendant’s consciousness of guilt. The claims against Susan Falk were severed. The remaining claims were tried to a jury, which found in favor of the defendant.

I

The plaintiffs first claim that the trial court improperly failed to give the requested charge of falsus in uno, falsus in omnibus. The term falsus in uno, falsus in omnibus (false in one thing, false in everything) refers to the prerogative of the jury to discredit all of a witness’ testimony if the jury finds that the witness has testified falsely in some respect. State v. Smith, 201 Conn. 659, 666, 519 A.2d 26 (1986). The plaintiff had requested that the trial court give this charge to the jury.3 The court did not charge as requested. The trial [855]*855court did, however, explain to the jurors that they could believe all, some or none of a witness’ testimony.4 The court stated clearly that the jury alone determined the credibility of witnesses and what testimony to believe.

“The maxim falsus in uno, falsus in omnibus in its permissive form has been approved in this state as an instruction to the jury in relation to their determination of the credibility of witnesses. . . . The approved instruction deals with the weight and credibility of testimony and not with the competency of witnesses. It serves as an aid to the jury in weighing and sifting the evidence. It is not a mandate to disregard all testimony of a witness who has been found to have wilfully or knowingly testified falsely as to any material fact although that was its literal meaning and original purpose. ... It has long been an established legal principle in this state that the trier of fact has the right to accept part and disregard part of the testimony of a witness. . . . Under the proper instruction the jury may or may not, as they see fit, reject all the testimony of the witness, and act on their own judgment as to the value and credibility of the testimony. . . . Under the general instructions by the court relating to the credibility of witnesses, the jury are similarly advised even if in fact the maxim is not called to their attention. . . . Instruction on the maxim is a matter rest[856]*856ing in the sound discretion of the trial judge.” (Citations omitted; emphasis added.) Raia v. Topehius, 165 Conn. 231, 234-36, 332 A.2d 93 (1973).

“A jury charge is to be considered from the standpoint of its effect on the jury in guiding it to a correct verdict. . . . The charge is to be read as a whole, with the instructions claimed to be improper read in that context. ... A reviewing court does not critically dissect the charge to discover possible inaccuracies. . . . The test to determine if a jury charge is proper is whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Jury instructions need not be exhaustive, perfect or technically accurate, so long as they are correct in law, adapted to the issues and sufficient for the guidance of the jury.” (Citations omitted; internal quotation marks omitted.) Lynch v. Granby Holdings, Inc., 32 Conn. App. 574, 580, 630 A.2d 609, cert. granted, 228 Conn. 913, 635 A.2d 1230 (1993).

Our review of the charge as given persuades us that it fairly presented the case to the jury in a way that injustice was not done to either party under the established rules of law.

II

The plaintiffs next claim that the trial court improperly commented on the evidence in its charge to the jury. The plaintiffs requested a charge on the defendant’s consciousness of liability.5 Although not in the language requested, the trial court did instruct the jury [857]*857that if a defendant disposes of property for no consideration after an event that might render the defendant liable, that disposition of property can be considered proof of the defendant’s consciousness of liability.6 The court also noted the defendant’s explanation for his transfer of property to his wife. The plaintiffs claim that this part of the charge improperly interfered with the province of the jury by impermissibly bolstering the defendant’s credibility.

The defendant asserts that this claim was not properly preserved for appeal. In order to preserve full appellate review of a jury charge assigned as error, the plaintiffs must (1) have either (a) requested the court to charge on the topic or (b) objected to the charge as given; Practice Book § 315; State v. Kwaak, 21 Conn. App. 138, 160 n.9, 572 A.2d 1015, cert. denied, 215 Conn. 811, 576 A.2d 540 (1990); and (2) moved to set aside the verdict. Budlong v. Nadeau, 30 Conn. App. 61, 65, 619 A.2d 4, cert. denied, 225 Conn. 909, 621 A.2d 290, cert. denied, U.S. , 114 S. Ct. 62, 126 L. Ed. 2d 31 (1993); Cuartas v. Greenwich, 14 Conn. App. 370, 374, 540 A.2d 1071, cert. denied, 209 Conn. 803, 548 A.2d 436 (1988). “This rule is essential in order to prevent a judicial game of pin-the-tail-on-the-claim-of-error.” Cuartas v. Greenwich, supra, 375.

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Bluebook (online)
643 A.2d 1314, 34 Conn. App. 852, 1994 Conn. App. LEXIS 239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/young-v-falk-connappct-1994.