Koops v. Gregg

The plaintiff filed a motion to reargue this case, restricted to a claim that the rescript, instead of directing unqualifiedly a new trial, should limit the retrial solely to the issue whether the defendant Tweedy in operating the car at the time of the accident was acting as the agent of Mrs. Gregg. This was the only issue as to which, upon the appeal to us, any error was claimed. The motion was granted and on the reargument Mrs. Gregg's counsel agreed that this might well be done, unless this court would direct that judgment in the trial court be rendered in her favor. As this case was tried to the jury, we could in no event do that. Fay v. Hartford Springfield Street Ry. Co., 81 Conn. 578, 71 A. 734. We can, however, in remanding a jury case, restrict the issues to be retried. Smith v. Whittlesey, 79 Conn. 189, 193, 63 A. 1085; Murray v. Krenz, 94 Conn. 503, 507,109 A. 859; Porter v. Taylor, 107 Conn. 68, 72,139 A. 649; Conn. App. Proc., 179. The situation before us seems peculiarly to call upon us to exercise that power. Accordingly, the rescript is amended to, read:

There is error, the judgment is set aside and a new trial is ordered solely upon the issue whether the defendant Mrs. Gregg is liable for the negligence of the defendant Tweedy in operating the car at the time of the accident; if, upon this issue, a verdict is returned finding her liable, judgment is to be rendered that the plaintiff recover of both of the defendants the amount of damages found due him in the judgment appealed from; but if, upon this issue, a verdict is rendered that she is not so liable, then judgment is to be rendered finding the issues for her.