text:
    State of Connecticut v. Lawson McMullen
    (2686)
    Hull, Borden and Spallone, Js.
    Argued June 6
    decision released September 11, 1984

      Jonathan E. Silbert, special public defender, with whom was Kerry M. Wisser, law student intern, for the appellant (defendant).

      William Domnarski, deputy assistant state’s attorney, with whom, on the brief, was Michael Sullivan, assistant state’s attorney, for the appellee (state).
   Hull, J.

The defendant, Lawson McMullen, appeals from the denial of his motions to dismiss and to suppress evidence and from his conviction after a trial to the court on charges of burglary in the third degree pursuant to General Statutes § 53a-103 and larceny in the second degree pursuant to General Statutes § 53a-123. The defendant claims, in this appeal, that certain evidence used against him was obtained through an improper investigative stop by police which led to his subsequent arrest. The court admitted that evidence after denying the defendant’s motions to dismiss and to suppress which McMullen claims was error. We find no error.

At 12:45 a.m. on September 24, 1980, two Yale University police officers, William Hawkins and Thomas Charron, were dispatched to the Yale golf course pro shop in response to a silent alarm which had been activated there. The officers arrived, twelve to fourteen minutes later, at the corner of Conrad Drive and Ray Road in New Haven. Upon turning onto Conrad Drive, a dead-end street terminating at the gate which is the only access to the Yale golf course, Hawkins and Charron observed only one vehicle on Conrad Drive, a station wagon coming toward them from the direction of the gate. When observed, the station wagon was at a point where there were only six to eight houses between it and the gate, all of which were on one side of the road.

The two officers passed the station wagon, and then turned around and followed it for a short distance before signalling the driver to pull over. Upon approaching the car, the officers noticed therein a typewriter in plain view. When the driver of the car, Michael Borghi, was unable to produce a drivers license, the officers radioed a request for registration information to the New Haven police department.

While waiting for the requested registration information, Hawkins and Charron asked the three occupants of the car which of them owned the typewriter. Borghi stated that it belonged to Pamela Andrus who was, along with the defendant, a passenger in the car at the time. Andrus, however, was unable to answer several identifying questions concerning the typewriter. Approximately six or seven minutes after the officers had stopped the car, they received a message from the backup police who had also been dispatched to the pro shop. Those officers informed them that the cash register, containing approximately eighteen dollars, had been emptied and that a typewriter was missing. The three occupants of the car were then arrested and $17.05 in change was found on the defendant’s person when he was searched pursuant to that arrest.

At his trial, the defendant filed a motion to dismiss and a motion to suppress claiming that the investigative stop was improper and that, as a result, the seized evidence was tainted and inadmissible. Both motions were denied, and after the defendant’s subsequent conviction, this appeal was filed alleging error in the trial court’s failure to suppress the evidence in question, and in that court’s failure to dismiss the charges.

It is well established that an “investigative stop” of a vehicle may be made on facts which would not be sufficient to constitute probable cause for arrest. United States v. Brignoni-Ponce, 422 U.S. 873, 880, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975); State v. Watson, 165 Conn. 577, 585, 345 A.2d 532 (1973). In fact, such a stop, where designed merely to “maintain the status quo momentarily while obtaining more information,” may be the officer’s most reasonable course of conduct. Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972); State v. Rice, 172 Conn. 94, 99, 374 A.2d 128 (1976).

At what point in time there exists sufficient cause to make an investigative stop has been the focus of numerous opinions by courts at both the federal and state levels in recent years. While these opinions provide little in the way of concrete guidance, they make one point clear: “the totality of the circumstances— the whole picture—must be taken into account” in deciding whether the stop was proper. United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981). Those circumstances must provide either “a ‘reasonable and articulable’ suspicion that the defendant had engaged in criminal activity. Reid v. Georgia, 448 U.S. 438, 440, 100 S. Ct. 2752, 65 L. Ed. 2d 890 (1980); Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)”; State v. Carter, 189 Conn. 611, 617, 458 A.2d 369 (1983); or “specific and articulable” facts which warrant the stop. State v. Januszewski, 182 Conn. 142, 148-49, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981).

In State v. Rice, supra, the court found an investigative stop, similar to the one in the present case, to be reasonable. The police officers in that case were responding to a call regarding a serious crime in which shots had been fired. Further, it was early morning and the defendant’s car had been stopped while leaving the driveway of the building to which the officers had been called. Id., 98-99. The court found that “[t]he intrusion was minimal and was, therefore, justified by the surrounding circumstances and by the gravity of the alleged crime under investigation.” Id., 99.

With the exception of the presence of a gun, this case parallels Rice, supra. Hawkins and Charron were responding to a silent alarm from which it was reasonable to infer that there was a burglary in progress; it was late at night and they saw only the defendant’s vehicle on Conrad Drive, coming from the direction of the golf course; and Conrad Drive has only one entrance to it. Given the totality of these circumstances, the officers had a reasonable and articulable basis for making the minimal intrusion that they made. As in Rice, supra, they neither asked anyone to step out of the car, nor did they search anyone at the time of the initial stop. The officers merely preserved a questionable situation in an attempt to dispel their suspicions. Id.; see United States v. Brignoni-Ponce, supra, 881.

We do not hold that this case is similar to those in which police officers observe suspicious behavior by the occupants of the vehicle, or peculiarities in its operation. See State v. Paoletto, 181 Conn. 172, 434 A.2d 954 (1980); State v. Acklin, 171 Conn. 105, 368 A.2d 212 (1976); State v. Watson, supra; State v. Cobuzzi, 161 Conn. 371, 288 A.2d 439 (1971), cert. denied, 404 U.S. 1017, 92 S. Ct. 677, 30 L. Ed. 2d 644 (1972). Rather, we hold that, as was the case in United States v. Cortez, supra, 418, the surrounding circumstances made the stop reasonable in this case.

In the present case, as in United States v. Cortez, supra, there was nothing suspicious about the vehicle, but significant facts, and deductions therefrom, implicated it in a less direct manner. See id., 419-21. Those facts, while they may be somewhat less certain than direct observation of suspicious behavior, may still amount to reasonable and articulable suspicion. We cannot forget that “[t]he process does not deal with hard certainties, but with probabilities.” Id., 418. Nor can we forget that officers in the field cannot take time carefully to analyze the situation before them in jurisprudential fashion. “[T]he evidence . . . must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.” Id.

While the defendant briefed both the issue of the post-stop search of the vehicle, and the search of his person incident to arrest, he candidly conceded at oral argument that both the arrest and search were proper if the initial stop was proper. As we have found that the stop was, indeed, proper, we need not consider the subsequent arrest and search.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       Borghi stated that he was learning to drive under the tutelage of Pamela Andrus, who was sitting beside him at the time of the stop and who subsequently turned out to be the owner of the car.

       While both Borghi and Andrus were arrested and charged in connection with this incident, both of them agreed to testify against McMullen on the state’s behalf, in exchange for suspended sentences and probation on charges of larceny in the second degree to which they both agreed to plead guilty.


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    John E. Coxe et al. v. Samuel H. Coxe et al.
    (2916)
    Dupont, Borden and Spallone, Js.
    Argued June 5
    decision released September 11, 1984

      Charles M. Tighe, with whom, on the brief, was Marianne B. Kilby, for the appellant (plaintiff John Lohmann).

      James Sicilian, with whom, on the brief, were Richard M. Reynolds and Sharon S. Tisher, for the appellee (defendant Ruth B. Coxe).
   Borden, J.

This is an action for partition of a parcel of real estate located on Sill Lane in Old Lyme, which consists of a working farm and undeveloped acreage with substantial water frontage on the Lieutenant River and Mill Brook. The defendant Ruth B. Coxe, individually and as administratrix of the estate of her husband, Samuel H. Coxe, is the owner of a one-half interest in the property. The plaintiff John Lohmann is the owner of the other one-half interest in the property. During the course of this litigation, he acquired his interest from John and Joan Coxe, the brother and sister-in-law of Samuel H. Coxe, who were the original plaintiffs, and he was substituted as party plaintiff.

The property is comprised of approximately thirty-six acres of fields, woodlands and marsh. It contains one dwelling, a 200 year old historic homestead, which is located at the far easterly end of the property. The homestead is flanked to the north, west and south by three open fields. The remainder of the property beyond the open fields to the west is comprised of woodlands and wetlands.

The property has been owned by the defendant’s family since 1924, when it was acquired by her mother-in-law, Helen Coxe. The defendant and her husband came to live on the property in 1968 and have been, since the death of Helen Coxe, its sole residents together with their two sons. The defendant presently resides on the property with her two sons. Ever since the defendant came to live on the property, it has been actively farmed for the subsistence and livelihood of the Coxe family. The farming activities include raising corn for sale and home consumption, the production of a variety of vegetables, fruits, berries, hay and honey, and raising chickens and other fowl. The farming activities are conducted on the three fields surrounding the homestead and in farm buildings appurtenant to it.

The defendant and her sons perform all the work of operating the farm. The farm is, and has been since the death of Samuel Coxe in 1981, the sole source of income and livelihood to the family. The defendant has not been employed outside the home since her marriage. Even prior to Samuel Coxe’s death, the farm figured as a principal source of the family’s support because Samuel Coxe, an attorney admitted to the Connecticut bar, regarded himself as a farmer-lawyer and was dedicated in a major way to operation of the farm. The net income gained from sales of produce from the farm has not been substantial.

The plaintiff, who is sixty-three years old, is a licensed architect, although he is not presently in active practice. Most of his time over the last several years has been spent on conservation work. In addition to his interest in this property, he has acquired and currently owns thirty-five acres on the Connecticut River and has an interest in fifty acres on the Lieutenant River, both undeveloped and not the subject of any plans for development. He is not a developer and has no experience in real estate development. His intent with respect to the property is to keep it intact and to preserve it as is, so long as he is able to do so. He does not currently need to earn income from the property.

On May 2,1980, when John and Joan Coxe were the plaintiffs, the court, after a hearing, rendered a judgment ordering partition by sale. The court subsequently ordered that the sale take place on August 2,1980. On November 3, 1980, after an appeal by the defendant was dismissed for procedural defects, the court granted the plaintiff’s motion to open the judgment of May 2, 1980, in order to change the sale date to May 23,1981. On March 8, 1981, Samuel Coxe died and Ruth Coxe was substituted as party defendant in his place.

On May 7,1981, John and Joan Coxe sold their one-half interest in the property to Lohmann for $158,000 and he was later substituted as party plaintiff. At the sale held on May 23, 1981, Lohmann, whose bid was the third highest, offered $560,000 for the entire parcel and the defendant offered a high bid of $570,500. The defendant paid the required deposit of $35,000, but failed to pay the balance of the purchase price by the August 20, 1981 deadline. On February 1, 1982, the court denied the defendant’s motion to recover her $35,000 deposit and at the same time ordered that a new sale take place on May 1,1982. On April 29,1982, with the consent of the parties, the court ordered that the sale of May 1, 1982, not go forward. On May 27, 1982, the plaintiff moved to open the February 1,1982 judgment and to set a new sale date. On June 10,1982, the court granted the plaintiff’s motion and ordered that the sale take place on July 10, 1982. At the July 10, 1982 sale, the plaintiff, who was the highest bidder, offered $400,000 for the entire parcel.

On July 28,1982, the defendant filed a motion to open the judgment of June 10, 1982, and to substitute an order of partition by physical division. The court held an evidentiary hearing on the motion. On December 8, 1982, the court found that because there are only two competing interests, each owning a one-half aggregate interest, and because of the physical attributes of the property, the interests of the owners would be better promoted by physical division of the property than by a partition by sale. The court accordingly granted the defendant’s motion to open the judgment of June 10, 1982, set aside the sale of July 10, 1982, and ordered that the property be partitioned by physical division in a manner which closely paralleled a proposal previously offered by the plaintiff. The court’s order of partition by physical division gave to the defendant and her sons the homestead and farm buildings and the three adjoining fields, together with a water easement to Mill Brook for the continued operation of the farm. The plaintiff received the remainder of the woodlands, wetlands and water frontage, with a right of way to Sill Lane. The plaintiffs appeal is from the court’s order opening the judgment of June 10, 1982.

The plaintiff first argues that the court did not have jurisdiction to open the judgment because the motion was not filed within four months of May 2, 1980, the date of the original judgment ordering a partition by sale. We agree with the defendant that the court had jurisdiction because the motion was filed within four months of the June 10, 1982 judgment, which for all purposes was substituted for any previous judgment.

General Statutes § 52-212a and Practice Book § 326 state that a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. It is settled law in Connecticut that when a court opens a judgment of sale to change the sale date or otherwise modify the terms of sale, the modified judgment completely replaces the original judgment and becomes the only valid judgment in the case. William G. Major Construction Co. v. DeMichely, 166 Conn. 368, 374-75, 349 A.2d 827 (1974); Union & New Haven Trust Co. v. Taft Realty Co., 123 Conn. 9, 15-16, 192 A. 268 (1937). The modified judgment is “in essence and substance a new judgment.” Id., 16. Thus, each time the judgment is modified, “the case [stands] as though [the] judgment as originally entered had never been rendered.” Milford Trust Co. v. Greenberg, 137 Conn. 277, 279, 77 A.2d 80 (1950); State v. Phillips, 166 Conn. 642, 645-46, 353 A.2d 706 (1974).

In the present case, the court’s order of November 3, 1980, involved a modification of the judgment of May 2, 1980, by implication an opening of that judgment which it modified, and a complete substitution for its operative portions. The same can be said as to the effect of the February 1,1982 judgment upon the judgment of November 3, 1980, and, likewise, the judgment of June 10, 1982, on the judgment of February 1, 1982. See Milford Trust Co. v. Greenberg, supra, 278-79. Thus, the only judgment in effect on July 28, 1982, when the defendant filed her motion to open, was the June 10,1982 judgment. Accordingly, the motion was filed within the four month period of General Statutes § 52-212a and Practice Book § 326 and the court had jurisdiction to act on it.

The plaintiff next argues that the court erred in deciding to open the judgment of partition by sale because no new circumstances arose which warranted opening of the judgment. He maintains that the court neither discussed nor expressed any grounds upon which it was opening the judgment.

We first note that the plaintiff could have moved pursuant to Practice Book § 3082 to have the trial court clarify its decision by stating the grounds upon which it was opening the judgment. Vaiuso v. Vaiuso, 2 Conn. App. 141, 149, 477 A.2d 678 (1984). In any event, our review of the entire record of the proceedings in the trial court indicates that there were sufficient grounds supporting the court’s decision to open the judgment and order a partition by physical division. See Ram Roofing & Sheet Metal Co. v. A.B.C. Plumbing & Heating, Inc., 2 Conn. App. 54, 57, 475 A.2d 341 (1984). The principal evidence in support of the court’s May 2,1980 judgment of a partition by sale was provided by John and Joan Coxe, the original plaintiffs, who testified that they resided in Pittsburgh, had no experience in land development, were not able to attend to developing the land because of a recent disability of John Coxe’s, and therefore preferred that the land be sold. By July 28, 1982, when the defendant moved to open the judgment there had been at least three material changes of circumstances: (1) Lohmann purchased John and Joan Coxe’s interest in the property and was substituted as party plaintiff; (2) the defendant Samuel Coxe died, leaving the farming operation as the sole source of income for the defendant and her sons; and (3) there had been negotiations between the parties with respect to voluntary division of the property, which negotiations had been disclosed to the court on the record.

The first change eliminated the principal justification presented to the court for ordering partition by sale, namely, the unwillingness and incapability of John and Joan Coxe to undertake the development of a portion of the property and their desire that the land be sold. The second change, the death of Samuel Coxe, deprived the defendant and her sons of their only other source of economic support, making the continued operation of the farm that much more compelling. The third change, the fact that the parties came very close to a voluntary division of the property, implicitly refuted any evidence previously offered that physical division was impracticable or inequitable.

A timely motion to open and vacate a judgment is addressed to the court’s discretion, and its action will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. Grunschlag v. Ethel Walker School, Inc., 190 Conn. 679, 684, 462 A.2d 1 (1983).

Since a partition action is equitable in nature; General Statutes § 52-495; Gaer Bros., Inc. v. Mott, 147 Conn. 411, 415, 161 A.2d 782 (1960); it is not a clear abuse of discretion for the court, in the exercise of its equitable powers, to consider changes in circumstances predating the most recent judgment, when those changes were neither raised by the parties nor addressed by the court in the previous motions to open the judgment. We cannot say, in view of the evidence on the whole record, that there was a clear abuse of the trial court’s discretion in opening the judgment.

The plaintiff finally argues that the court erred in ordering partition by physical division. We disagree.

It has long been the policy of this state to favor a partition in kind over a partition by sale. Delfino v. Vealencis, 181 Conn. 533, 536, 436 A.2d 27 (1980). A partition by sale should only be ordered when “(1) the physical attributes of the land are such that a partition in kind is impracticable or inequitable . . . and (2) the interests of the owners would better be promoted by a partition by sale.” Delfino v. Vealencis, supra, 537-38. The burden is on the party requesting a partition by sale to demonstrate that such a sale would better promote the owner’s interests. Id., 538.

The court in Delfino v. Vealencis, supra, under a factual setting similar to the present case, reversed the trial court’s order of partition by sale and directed a judgment of partition by physical division, noting that “[t]he trial court failed to give due consideration to the fact that one of the tenants in common has been in actual and exclusive possession of a portion of the property for a substantial period of time; that the tenant has made her home on the property; and that she derives her livelihood from the operation of a business on this portion of the property, as her family before her has for many years.” Id., 543. The court went on to state that “[a] partition by sale would force the defendant to surrender her home, and perhaps would jeopardize her livelihood,” and that “[i]t is under just such circumstances, which include the demonstrated practicability of a physical division of the property, that the wisdom of the law’s preference for partition in kind is evident.” Id.

In the present case, the evidence clearly established that the property has been owned by the defendant’s family since 1924; that the defendant, her husband and her children had exclusive possession of the property since 1971 and that it served as their home; and that the defendant actively farmed a portion of the property for the subsistence and livelihood of her family. In addition, the court found that because there are only two competing ownership interests, each owning a one-half aggregate interest, and because of the physical attributes of the property, the interests of the owners would be better promoted by physical division of the property than by sale. Under these circumstances, it is clear that “the wisdom of the law’s preference for partition in kind is evident”; id.; and the court did not err in ordering partition by physical division.

There is no error.

In this opinion the other judges concurred.

       Following Samuel Coxe’s death, Ruth Coxe proceeded pro se. Her present counsel did not file their appearance on her behalf until July 22,1982.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The full text of General Statutes § 52-212a provides as follows: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. The parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court.” Practice Book § 326 uses almost identical language.


author: Dupont, J. Borden, J.,

text:
    Mary Petrowski v. Norwich Free Academy et al.
    (2415)
    Hull, Dupont and Borden, Js.
    Argued January 10
    decision released September 11, 1984

      Marvin M. Horwitz, with whom, on the brief, were Deborah H. Benson and Gregg C. Benson, for the appellant (plaintiff).

      EdmundS. Hicks, Jr., with whom, on the brief, was Henry S. Cohn, for the appellees (defendants).
   Dupont, J.

The sole issue of this appeal is whether two lawyers who were members of the board of trustees of a privately endowed high school could, without a denial of due process rights accorded by the fourteenth amendment to the United States constitution, participate in a hearing and a decision on whether to terminate a tenured teacher’s contract of employment with the school, when other members of their law firm, both prior to, and as of the date of the hearing, represented the school in other unrelated matters and considered the school a representative client for purposes of legal advertising.

The plaintiff teacher, upon receiving written notice that a termination of her contract was under consideration, requested a hearing before the board of trustees of the high school pursuant to General Statutes (Rev. to 1983) § 10-151 (b). During the course of that hearing, she sought to have two members of the board disqualify themselves on the ground that they had an interest in the case sufficient to interfere with their impartiality. They refused to disqualify themselves. The board unanimously voted to terminate the plaintiffs employment contract and the plaintiff appealed from that decision to the Superior Court. That court found that neither member of the board was prejudiced against the plaintiff, and that the personal interests of both in the outcome of the proceedings were too nebulous and remote to have required their disqualification. The court rendered judgment for the defendants dismissing the plaintiffs appeal, from which the plaintiff has appealed.

A member of a school board, when participating in an administrative hearing to determine if a tenured teacher’s contract should be terminated, is acting in a quasi-judicial capacity. Catino v. Board of Education, 174 Conn. 414, 417, 389 A.2d 754 (1978). A tenured teacher has a right to continued employment except upon a showing of cause for termination or a bona fide elimination of the teaching position. General Statutes § 10-151 (d). That right is a property right under the due process clause of the fourteenth Amendment to the United States constitution and Article first, § 8 of the Connecticut constitution. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Lee v. Board of Education, 181 Conn. 69, 72, 434 A.2d 333 (1980). As such, courts must ensure, upon review of a decision to terminate employment, that the right to employment is meaningfully protected. Id., 83. That protection includes a fair hearing by an impartial hearing panel. Catino v. Board of Education, supra, 418.

Since a tenured teacher has a constitutionally protected property interest in his or her employment, the question, in the context of this case, becomes what constitutes an impartial hearing panel sufficient to satisfy constitutional due process. Due process requires a fair hearing before a fair tribunal which principle applies with equal vigor to administrative adjudicatory proceedings. Gibson v. Berryhill, 411 U.S. 564, 579, 93 S. Ct. 1689, 36 L. Ed. 2d 488 (1973).

In order to determine if the board in this case was constitutionally impartial, it is first necessary to determine what guidelines for disqualification prevail in an administrative hearing relating to a termination of a tenured teacher’s employment contract. Differing standards for disqualification apply to different administrative hearings. Allen, “Disqualifying Agency Decision Makers,” Litigation, Winter 1981, p.15. Administrative hearings may be categorized as quasi-judicial, legislative, prosecutorial, or rulemaking.

The parties in the present case rely almost entirely, in their briefs, on Connecticut cases relating to the disqualification of members of zoning commissions, zoning boards, and planning commissions. Such cases provide helpful guidelines for the necessity of disqualification in some administrative hearings. The disqualification of members of such boards and commissions has been governed by specific statutes since the leading case of Low v. Madison, 135 Conn. 1, 60 A.2d 774 (1948). After that case held that public officers, such as members of zoning commissions, cannot sit as members when their private interests could conflict with their duty to be fair and impartial, the legislature enacted General Statutes §§ 8-11 and 8-21. These statutes prohibit members of such boards and commissions from representing those with matters before the boards and commissions, and from serving on such bodies when the members are directly or indirectly interested in those matters in a personal or financial sense. Cases decided pursuant to these statutes are illustrative of the basic premise that “no man shall be a judge in his own case” and serve as a statutory guide in cases involving such boards and commissions as well as in cases not involving them. Dana-Robin Corporation v. Common Council, 166 Conn. 207, 213-14, 348 A.2d 560 (1974); Furtney v. Zoning Commission, 159 Conn. 585, 592, 271 A.2d 319 (1970); Anderson v. Zoning Commission, 157 Conn. 285, 290, 253 A.2d 16 (1968); Kovalik v. Planning & Zoning Commission, 155 Conn. 497, 498-99, 234 A.2d 838 (1967); Josephson v. Planning Board, 151 Conn. 489, 493, 199 A.2d 690 (1964). The holdings of such cases support the general propositions that the requirement of disqualification depends upon the facts of the particular case and that public officials cannot have a personal interest in the subject matter or a relationship with one of the parties which would destroy their impartiality or conflict with their duty.

A recent case, which does not discuss disqualification of a public official in terms of due process and which does not involve the application of General Statutes §§ 8-11 and 8-21, does affirm the principles of Low v. Madison, supra. In Gaynor-Stafford Industries, Inc. v. Water Pollution Control Authority, 192 Conn. 638, 474 A.2d 752 (1984), it was determined on the particular facts of that case that a member of the water authority did not have a personal interest sufficient to conflict with his public duty to determine benefit assessments for industrial users of a public sewerage system. The member was an officer of one of the industrial users. Although he participated in the vote adopting the method of benefit assessments, that method was not devised by the authority but was recommended by a consultant hired by the water authority, and the idustrial user of which he was an officer did not benefit from either the method of calculation or the date chosen for determining the assessment. The court quoted from Low v. Madison, supra, 8, noting that the actual good faith of a public officer is immaterial since it is the policy of the law to insure that such official exercises his public duty unselfishly, without any conflict because of a personal interest in the matter. “The test is not whether personal interest does, in fact, conflict, but whether it might reasonably conflict.” Gaynor-Stafford Industries, Inc. v. Water Pollution Control Authority, supra, 648. “[T]he appearance of impropriety created by a public official’s participation in a matter in which he has a pecuniary or personal interest is alone sufficient to require disqualification.” Id., 649. It is particularly important to note that Gaynor-Stafford did not involve a public body acting in a quasi-judicial capacity, but, rather, one in a legistative or rulemaking capacity since the procedure or formula used by the authority applied equally to all those to be assessed.

Federal case authority is consonant with Connecticut cases. A line of federal cases, beginning in 1926, discuss general principles relating to the due process requirements of administrative hearings. All agree that due process is violated when there has been an impermissible risk of bias, or a lack of entitlement to an impartial and disinterested tribunal. Schweiker v. McClure, 456 U.S. 188, 102 S. Ct. 1665, 72 L. Ed. 2d 1 (1982); Marshall v. Jerrico, Inc., 446 U.S. 238, 100 S. Ct. 1610, 64 L. Ed. 2d 182 (1980); Withrow v. Larkin, 421 U.S. 35, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975); Ward v. Village of Monroeville, 409 U.S. 57, 93 S. Ct. 80, 34 L. Ed. 2d 267 (1972); In re Murchison, 349 U.S. 133, 75 S. Ct. 623, 99 L. Ed. 942 (1955); Tumey v. Ohio, 273 U.S. 510, 532, 47 S. Ct. 437, 71 L. Ed. 749 (1927); Wolkenstein v. Reville, 694 F.2d 35 (2d Cir. 1982), cert. denied, 462 U.S. 1105, 103 S. Ct. 2452, 77 L. Ed. 2d 1332 (1983); Amos Treat & Co. v. Securities & Exchange Commission, 306 F.2d 260 (D.C. Cir. 1962). None relies upon a particular statute governing disqualification. The results vary with the facts. Due process is an elusive concept which lacks definable boundaries.

During the period 1969 to 1979, “the Supreme Court has proceeded case-by-case in determining whether due process applies to various functions of administrative agencies, and in determining the specific process required.” Note, “Due Process and Ex Parte Contacts in Informal Rulemaking,” 89 Yale L.J. 194, 200 (1979).

The case of Simard v. Board of Education, 473 F.2d 988 (2d Cir. 1973), is relied on by both parties. The plaintiff cites it because of its reaffirmation of the principle that an impartial decision maker is a basic component of minimal due process and that an administrative hearing must contain every element of fairness, both in reality and appearance. The defendant cites it for the proposition that, absent a showing of actual, rather than potential bias, members of a school board need not disqualify themselves because of their prior contacts with a party. The Simará case is inapposite to the present case. It is confined to its particular facts, involves a nontenured teacher, and sought, as relief, a blanket disqualification of the entire board as a hearing body. The court was influenced in its decision by the fact that if the board of education could not hear and decide whether the nontenured teacher’s contract should be terminated, the hearing would, of necessity, have to be held by a body less familiar with the making of such a decision. General Statutes § 10-151 (d), as it existed at the time of the Simará decision, was amended in pertinent part by Public Acts 1975, No. 75-615 and Public Acts 1983, No. 83-398, § 1 since that decision. The statute now provides for a hearing before an impartial tribunal as an alternative to a hearing before the board. Thus, the buttress for the Simará court’s holding has been seriously weakened.

Although cases involving disqualification of members of zoning and planning boards and commissions have been relied upon by the parties for their respective positions, it is equally helpful to examine those statutes, rules and decisions which relate to the disqualification of judges, since boards of education, acting pursuant to General Statutes § 10-151 (d), act in a quasi-judicial capacity. Catino v. Board of Education, 174 Conn. 414, 417, 389 A.2d 754 (1978). The acme of impartiality required of administrative hearing bodies exists when those bodies act in a quasi-judicial capacity. See Allen, supra.

“The same considerations which have led to the development of rules as to the disqualification of judicial officers for bias or prejudice, based on personal interest or the like, have been generally recognized as applicable to administrative officials as well, insofar as they act in a judicial or quasi-judicial capacity.” Annot., 10 A.L.R.3d 694, 696; 1 Am. Jur. 2d, Administrative Law §§ 63 through 69; see also Gibson v. Berryhill, 411 U.S. 564, 579, 93 S. Ct. 1689, 36 L. Ed. 2d 488 (1973). The Gibson court stated: “It has also come to the prevailing view that ‘[m]ost of the law concerning disqualification because of interest applies with equal force to . . . administrative adjudicators.’ ” Gibson v. Berryhill, supra, quoting Davis, Administrative Law (1972) § 12.04, p. 250.

The rules which apply to administrators, however, are not always the same as those which apply to judges because administrators often perform functions which are foreign to judges. Any determination of whether there is impropriety or the appearance of impropriety on the part of a member of an administrative board is linked to the subsidiary determination of whether the board is acting in a legislative, prosecutorial or judicial role. “When an administrator acts as a judge, not a prosecutor or legislator, he must conduct himself like a judge. That means impartiality; the standard for judges set forth in 28 U.S.C. § 455 will generally apply. An agency judge must not participate ‘in any proceeding in which his impartiality might reasonably be questioned.’ ” (Footnote added.) Allen, supra, 16.

The constraints which ought to be imposed on administrators may be examined by making an analogy between the disqualification rules which apply to judges and those which, by derivation, should apply to those administrators who act as judges. Strauss, “Disqualifications of Decisional Officials in Rulemaking,” 80 Colum. L. Rev. 990, 997 (1980). A judge usually determines issues in a case-unique proceeding, with an on-the-record adjudication of those issues, with the power to resolve issues involving specific parties and the power to impose sanctions and penalties against, or to grant awards to particular individuals. The test for judicial disqualification parallels the test for administrative adjudicative disqualification. Id., 1020-22. The due process requirements of an impartial hearing body in the quasi-judicial realm is equivalent to that requirement in the judicial realm. Withrow v. Larkin, 421 U.S. 35, 46-51, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975). When administrators act in a quasi-judicial capacity, as the board in this case did, their functions and that of judges most closely merge and the judicial model to test impropriety becomes an acceptable one. Strauss, supra, 1026-27.

Connecticut has had a statute since 1672 requiring the disqualification of a judge in cases in which certain familial relationships exist between a judge and a litigant. General Statutes of 1672, p. 42. That statute is the progenitor of our present statute which prohibits a judge from hearing cases in which he has an interest or in which he and a litigant have a particular relationship. The purpose of the statute is to ensure that those who participate in proceedings in a judicial capacity are disinterested in the proceedings. Dacey v. Connecticut Bar Assn., 184 Conn. 21, 27, 441 A.2d 49 (1981). The relationships listed in General Statutes § 51-39 (a) are illustrative and not all-inclusive, and extend to the relationship between a judge and a nonstock corporation in which the judge holds membership. Dacey v. Connecticut Bar Assn., supra, 28-29. Such a relationship without any finding of actual bias or prejudice, and without any finding of the lack or presence of a financial interest in the outcome of the litigation is sufficient per se to disqualify a judge from listening to a case in which the nonstock corporation is a litigant.

It is not only judges to whom the present statute or prior statutes apply. Those acting in a judicial capacity, in the sense that they preside over the receipt and examination of evidence and the taking of evidence from sworn witnesses, with a duty to make orders based on the evidence presented, are subject to the statutory prohibition. French v. Waterbury, 72 Conn. 435, 44 A. 740 (1899); Windham Cotton Mfg. Co. v. Hartford, Providence & Fishkill R. Co., 23 Conn. 373, 385 (1854); English v. Smith, 13 Conn. 221 (1839); Johnson v. Huntington, 13 Conn. 47 (1838); Stoddard v. Moulthrop, 9 Conn. 502 (1833); Fox v. Hills, 1 Conn. 295 (1815).

In determining the issue of the present case, it is assistive to examine the federal statutes which govern judicial conduct. There is a federal counterpart to the Connecticut statute. A judge must disqualify himself in any proceeding in which his impartiality might reasonably be questioned. 28 U.S.C. § 455 (a). Although the statute does not strictly apply to the disqualification of administrators, it is a persuasive indicator of the principles to be applied in order to determine in what instances administrators must disqualify themselves. 3 Davis, Administrative Law Treatise (2d Ed. 1980) § 19.6; see comment, “Disqualification of Federal Judges for Bias or Prejudice,” 46 U. Chi. L. Rev. 236 (1978).

In order to resolve whether disqualification is necessary, the issue is not whether the judge is impartial in fact but whether the average person would question his impartiality. United States v. Gigax, 605 F.2d 507, 511 (10th Cir. 1979). The statute, does not apply per se to the disqualification of those other than judges but is a compelling guide for the disqualification of hearing officers who act in adjudicatory administrative capacities. 3 Davis, supra, § 19.6.

Canon 3 of the code of judicial conduct in Connecticut is very similar to 28 U.S.C. § 455 (a) and also requires disqualification of a judge in a proceeding in which his impartiality might reasonably be questioned. The canons of judicial ethics may apply to those other than full-time judges. Clark v. DeFino, 80 N.J. 539, 545-46, 404 A.2d 621 (1979); Matter of McInnis, 273 S.C. 589, 592, 258 S.E.2d 91 (1979); West Virginia Judicial Inquiry Commission v. Casto, 163 W. Va. 661, 662 n.2, 263 S.E.2d 79 (1979).

Hornbook law is relatively easy to state. The difficulty lies in applying it to a particular case. The question here is whether two of the members of the hearing panel, as members of a law firm which had represented and which currently represented one of the litigants, the school, in other unrelated matters and which listed the school as a representative client in legal advertising, must be disqualified even though they had no personal bias or prejudice, or knowledge of the particular case to be heard. All of the trustees were acquainted with the school and had been appointed by the school. Two of them, however, had a connection with the school, apart from their membership on the board of trustees, which might interfere with their impartiality. Those who act in a quasi-judicial capacity as when deciding whether to terminate a tenured teacher’s contract; Catino v. Board of Education, supra; must disqualify themselves when their interests or relationships create the appearance of possible partiality. LaTorre v. Hartford, 167 Conn. 1, 8, 355 A.2d 101 (1974). An attorney-client relationship between a judge and a party in a proceeding before the judge disqualifies the judge. Dacey v. Connecticut Bar Assn., supra, 27.

When the school retained the law firm of two of the members of the school’s board of trustees, it retained every member of the firm, and the attorney-client relationship which resulted included those members. Bossert Corporation v. Norwalk, 157 Conn. 279, 283, 253 A.2d 39 (1968). They represented the school as surely as if they personally had been consulted as attorneys for the school. The law firm has an attorney-client relationship with the school, even though in some instances it was paid or will be paid by an insurer of the school. The test of the attorney-client relationship is not who pays the bills, but to whom allegiance is owed. Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 573, 316 A.2d 394 (1972); Connecticut Bar Association, Informal Opinion No. 83-5, October 14, 1982.

The present case is the once-removed kin of Bossert Corporation v. Norwalk, supra. In Bossert, a decision of the hearing body was declared invalid under General Statutes § 8-21 because a member of that body was also a member of a law firm which represented an opponent of the applicant, even though the member disqualified himself and did not participate in the hearing. Here, members of the hearing body were also members of a law firm which represented a litigant on other matters.

The purpose of General Statutes §§ 51-39, 8-11 and 8-21, and of decisions on the subject of disqualification is to guarantee the impartiality of tribunals. These statutes and decided cases are indicative of a legislative and judicial policy that judges and those acting in certain administrative roles must not preside over or hear cases or matters in which they are not wholly free, disinterested and independent. Due process for those with protected property rights requires an impartial administrative adjudicator. Gibson v. Berryhill, supra, 579.

“[Jjustice must satisfy the appearance of justice.” Offut v. United States, 348 U.S. 11, 14, 75 S. Ct. 11, 99 L. Ed. 11 (1954). This “stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties.” In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 99 L. Ed. 942 (1955).

Two members of the board of trustees of the school had a double-layered fealty to it. Their simultaneous relationship with the school and with their law firm is too close for procedural due process comfort. Their participation in the hearing was violative of the plaintiffs due process rights.

There is error, the judgment is set aside and the case is remanded with direction to reverse the decision of the board of the trustees.

In this opinion Hull, J., concurred.

Borden, J.,

dissenting. The majority applies to the defendants a standard which the constitution does not demand of them, and it reaches a result which is inconsistent with the application of the proper standard. Therefore, I dissent.

The plaintiff, a female teacher at Norwich Free Academy, after a full administrative hearing before the eight members of the board of trustees of the academy, was found, inter alia, to have had intimate physical contact with one of the minor students of the academy; to have provided alcoholic beverages to several such minor students, including the one with whom she had intimate contact; to have consumed alcoholic beverages with them; to have permitted them to consume such beverages in her presence; and to have taken a student, who was inexcusably absent from class, to an athletic event and later to have covered for him by writing a note. On the basis of these findings, which she does not challenge on this appeal, the board of trustees terminated her contract of employment.

On appeal to the Superior Court, the plaintiff challenged the participation in the administrative proceeding of two of the members of the board on the ground that they were also members of the law firm that represented the academy in other, unrelated matters. One of the challenged members, Wayne G. Tillinghast, when requested by the plaintiff to disqualify himself from the administrative proceedings, had made remarks on the record which were subject to an interpretation calling into question his impartiality; the other challenged member, James J. Dutton, made no such remarks. The trial court heard evidence and specifically found that the law firm of which Tillinghast and Dutton were members represented the academy from time to time on relatively minor real estate matters; that the firm considered the academy as a representative client for purposes of advertising and legal publication; that at the time of the administrative hearing one of the other members of the firm was retained by the academy’s insurer to represent it in a tort suit; that Tillinghast was not prejudiced against the plaintiff and had not prejudged the case; and that there was no evidence that Dutton was prejudiced against the plaintiff or unfair to her in any way. The plaintiff does not challenge these critical findings on this appeal.

Her sole claim before us is that the participation of Tillinghast and Dutton in the administrative hearing violated her due process rights under the fourteenth amendment to the United States constitution. I can only read the majority opinion as resting on the proposition that the due process test for disqualification of an administrative adjudicator is equivalent to the test for disqualification of a judge. That this is the gist of the opinion is clear from the following sentence, which ends the critical paragraph of the majority opinion: “When administrators act in a quasi-judicial capacity, as the board in this case did, their functions and that of judges most closely merge and the judicial model to test impropriety becomes an acceptable one.” Petrowski v. Norwich Free Academy, supra, 560.

I agree that had Tillinghast and Dutton been judges participating in a judicial proceeding, they would have been disqualified, because the relationship between their law firm and the academy would have violated the governing standard for judicial disqualification, which is the reasonable appearance of impropriety. “ ‘The question is not whether the judge is impartial in fact. It is simply whether another, not knowing whether or not the judge is actually impartial, might reasonably question his [or her] impartiality, on the basis of all of the circumstances.’ ” Papa v. New Haven Federation of Teachers, 186 Conn. 725, 746, 444 A.2d 196 (1982).

The majority, however, draws an equation between the standard governing judicial disqualification and the due process standards governing disqualification of administrative adjudicators. The principal authorities offered for this startling proposition are several passages from a law review article; Strauss, “Disqualifications of Decisional Officials in Rulemaking,” 80 Colum. L. Rev. 990 (1980); and from a passage from Withrow v. Larkin, 421 U.S. 35, 46-51, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975). I can find no support in any of those passages for the majority’s thesis of equality. In fact, the most telling part of one of those passages, rather than supporting the equation, contradicts it: “Yet the Supreme Court does not appear to have concluded that only those official functions that would also be performed by a judge consistent with judicial duty are consistent with fairness in adjudicative activities.” Strauss, supra, 1021-22. (Emphasis in original.) And the only references in Withrow v. Larkin, supra, are to the proposition that conduct by an administrator which would not require disqualification if he were a judge is, a fortiori, not constitutionally impermissible for the administrator. This is a far cry from the proposition of the majority, namely, that the standard for impartiality for a judge is what must be applied, as a matter of due process of law, to the issue of disqualification of an administrative adjudicator.

The proposition of the majority is contrary to the law. “The fact that [an administrative hearing officer] might have been disqualified as a judge . . . does not, either in principle or under the authorities, infect the hearing with a lack of due process.” Lopez v. Henry Phipps Plaza South, Inc., 498 F.2d 937, 944 (2d Cir. 1974); see also comment, “Disqualification of Federal Judges for Bias or Prejudice,” 46 U. Chi. L. Rev. 236, 237 n.6 (1978) (“the subject of judicial disqualification in the federal courts is governed by statutes that establish a more stringent standard than the Constitution demands”), citing United States v. Haldeman, 559 F.2d 31, 130 n.276 (D.C. Cir.), cert. denied, 431 U.S. 933, 97 S. Ct. 2641, 53 L. Ed. 2d 250, reh. denied, 433 U.S. 916, 97 S. Ct. 2992, 53 L. Ed. 2d 1103 (1977); Schweiker v. McClure, 456 U.S. 188, 197 n.11, 102 S. Ct. 1665, 72 L. Ed. 2d 1 (1982) (“The District Court’s analogy to judicial canons ... is not apt. The fact that a hearing officer is or was a carrier employee does not create a risk of partiality analagous to that possibly arising from the professional relationship between a judge and a former partner or associate.”) Thus, much of the majority opinion is simply beside the point.

The proper standard by which a due process claim of administrative disqualification is to be judged is stated in one of the United States Supreme Court cases which the majority opinion cites but does not discuss. “Mathews v. Eldridge, 424 U.S. 319, 335 [96 S. Ct. 893, 47 L. Ed. 2d 18] (1976), makes three factors relevant to such an inquiry: ‘First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.’ ” Schweiker v. McClure, supra, 193-94; Santosky v. Kramer, 455 U.S. 745, 751, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see also McGaffin v. Roberts, 193 Conn. 393, 412-13, 479 A.2d 176 (1984) (Parskey, J., dissenting) (quoting the three-part test articulated by Mathews v. Eldridge, supra, and Schweiker v. McClure, supra). Applying this test to the facts of this case, I conclude that the plaintiff’s due process rights were not violated.

The plaintiff’s private interest in her continued employment as a teacher is, of course, weighty and is entitled to due process protection. Lee v. Board of Education, 181 Conn. 69, 72, 434 A.2d 333 (1980). The risk of an erroneous deprivation of that interest through the procedure used, namely, the participation of Tillinghast and Dutton, and the probable value of additional and substitute procedural safeguards, did not require, however, the disqualification of either Tillinghast or Dutton in this case.

The trial court, after a full evidentiary hearing, specifically rejected the plaintiffs factual claim that Tillinghast and Dutton might be fearful of losing the academy as a client by not sustaining the charges against the plaintiff. The court also specifically found that Tillinghast was not prejudiced against the plaintiff, and had not prejudged the case, and that there was no evidence that Dutton was prejudiced against the defendant or unfair to her. It is axiomatic that “the burden of establishing a disqualifying interest rests on the party making the assertion.” Schweiker v. McClure, supra, 196. Thus, the plaintiff did not carry any factual burden of showing actual harm to her by the participation of Tillinghast and Dutton.

Moreover, it is very significant that the plaintiff chose to have her case adjudicated by the academy’s trustees, rather than, as was also her option, by a three person “impartial hearing panel” chosen as follows: one person chosen by the plaintiff, one chosen by the board, and one chosen by the two selected by her and by the board. General Statutes (Rev. to 1983) § 10-151 (b). Thus, she chose as her panel a group of people who already had a fiduciary duty, as members of the board of trustees, to the academy. The procedure established by General Statutes (Rev. to 1983) § 10-151 (b) rests on the “presumption that hearing officers who decide [such] claims are unbaised”; Schweiker v. McClure, supra, 195; a presumption that, unless rebutted, underlies the entire process of administrative adjudication. Id.; Withrow v. Larkin, 421 U.S. 35, 47, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975). This statutory scheme and, indeed, the law of administrative adjudication which generally permits combining in one agency or even one individual both investigative and adjudicative responsibilities; see Withrow v. Larkin, supra; assume that the adjudicators will, when faced with the specific and weighty task of adjudicating a particular claim of teacher misconduct, put aside their general loyalty to the academy and act conscientiously. The trial court found in effect that these two challenged adjudicators could and did so conduct themselves. I cannot believe, therefore, that, simply because these two of the eight trustees who heard the case are also members of a law firm which represents the academy on other, unrelated matters, there was added a constitutionally impermissible degree of error, or that the value of the additional safeguard of disqualification was constitutionally required.

Finally, the state has a strong interest in the control of its public educational system; Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975); see Campbell v. Board of Education, 193 Conn. 93, 475 A.2d 289 (1984); and thus in ensuring that young men and women be taught by teachers whom they can respect and who can serve as proper role models. When a teacher’s conduct is called into serious question, as it was here, the function of deciding whether that teacher should remain in her role is as important to the state as it is to her. The “fiscal and administrative burdens that [disqualification of Tillinghast and Dutton] would entail”; Schweiker v. McClure, supra, 194; are that this important decision would have had to be made by less than a full complement of the board, an option that should be reserved for cases involving a showing of actual bias on the part of a member of the board.

The result I reach is consistent with the distinct thrust of the authoritative federal cases applying the three-part due process test to analogous claims. In Schweiker v. McClure, supra, the Supreme Court found no due process violation where Medicare claims were adjudicated, even without a right of appeal, by hearing officers employed by the private insurance carriers which administered the claims. In Withrow v. Larkin, supra, the Court found no due process violation where a physician’s right to practice medicine was both investigated and adjudicated by the very same administrative licensing board. In Lopez v. Henry Phipps Plaza South, Inc., supra, the court found no due process violation where an eviction case was heard by a hearing officer who was also the manager of another housing project, which was also owned by the corporate parent of the landlord in the case which he was adjudicating. In Wolkenstein v. Reville, 694 F.2d 35 (2d Cir. 1982), the court found no due process violation where the superintendent of schools, of a school district in which the teachers went on an illegal strike, both dismissed teachers for striking illegally and adjudicated their subsequent objections to those dismissals. And in Simard v. Board of Education, 473 F.2d 988 (2d Cir. 1973), which the majority in this case attempts to distinguish, the court found no due process violation where the local board of education denied the plaintiff tenure after the board had recently bargained with the plaintiff who was chief negotiator for the teachers in contract negotiations “characterized by particular bitterness and recrimination.” Id., 990. Contrary to the majority’s limited reading of the case, it has been cited by Professor Davis as resting on the “absence of ‘actual, rather than potential, bias.’ ” 3 Davis, Administrative Law Treatise (2d Ed. 1980) § 19.4, pp. 388-89.

It is clear to me that in most or all of these cases a judge would have been properly disqualified from hearing the matter because of the appearance, rather than the actuality, of partiality. Papa v. New Haven Federation of Teachers, supra. This properly broad standard, deemed essential to public confidence in the integrity of the judiciary, does not apply to the administrative realm as a matter of due process of law. The majority opinion’s equation, for disqualification purposes, between administrative adjudicators and judges ignores the factual findings of the trial court; ignores the applicable precedents; ignores a long history of administrative law; ignores a long-standing presumption that administrative hearing officers, even those who may appear partial, are unbiased unless shown to the contrary; and, in my view, imperils other administrative adjudicative proceedings which, for example, combine in one agency or administrator both investigative and adjudicative responsibility. See, e.g., General Statutes §§ 19a-494 and 19a-498 (inspection of health facilities and adjudication of license revocations); cf. Withrow v. Larkin, supra.

My final disagreement with the majority lies in the rescript to the opinion, which orders that the case be remanded with direction to reverse the decision of the board. It does not address the question of whether either the board, shorn of Tillinghast and Dutton, or a statutory impartial hearing panel selected under General Statutes (Rev. to 1983) § 10-151 (b) can properly rehear the case. Although I would find no error in the decision of the trial court, if error is found, certainly the academy should be entitled to a rehearing of its charges before a tribunal which does not contain what the majority deems to be a constitutional taint. When such strongly competing interests are at stake, the ultimate outcome should not hinge on a procedural defect which is readily curable.

       This appeal, originally filed in the Appellate Session of the Superior Court, was transferred to the Supreme Court, and was thereafter transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       Article first, § 8 of the Connecticut constitution has the same meaning as the due process clause of the fourteenth amendment to the United States constitution. Lee v. Board of Education, 181 Conn. 69, 71, 434 A.2d 333 (1980).

       For purposes of General Statutes (Rev. to 1983) § 10-151 (b) which governs the termination of a tenured teacher’s employment contract, the board of trustees of an endowed high school has the same status as a board of education of a public high school. See also General Statutes § 10-34. Section 10-151 (b) was amended by Public Acts 1983, No. 83-398, § 1, but the amendment is immaterial to this decision; § 10-151 (b) is now § 10-151 (d), and is hereinafter referred to as § 10-151 (d) in the text of this opinion.

       Pursuant to General Statutes (Rev. to 1983) § 10-151 (b) (6), as it existed at the time of trial, the plaintiff or the board could have, in the alternative, requested or designated an impartial hearing panel to decide whether the plaintiffs contract should be terminated. At the time the plaintiff requested that the matter be heard by the trustees, she was unaware of the fact that other members of the law firm of two of the trustees represented the school in connection with other matters.

       It is not violative of due process for the same authority which initiated the subject of the hearing to listen to and determine its outcome as long as that authority gives the person appearing before it a fair, open and impartial hearing. 2 Am. Jur. 2d, Administrative Law § 412. An administrative agency can be the complainant and the adjudicator without being an unfair tribunal if it keeps the functions separate. Withrow v. Larkin, 421 U.S. 35, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975); Bruteyn v. State Dental Council & Exam. Bd., 32 Pa. Commw. 541, 380 A.2d 497 (1977). The standard which governs disqualification when determinations are made in a legislative capacity are far less stringent, requiring interference by the courts only when there has been fraud, corruption, plain disregard of duty, a gross abuse of power or a violation of the law in the action taken. LaTorre v. Hartford, 167 Conn. 1, 9, 355 A.2d 101 (1974); see Groton v. Hurlburt, 22 Conn. 178 (1852).

       See footnotes 3 and 4, supra.

       See page 561, infra.

       General Statutes § 51-39 (a) provides in pertinent part that “a judge is disqualified to act if a relationship between the judge and a party in any proceeding in court before him is as near as the degree of kinship between father and son, brothers, or uncle and nephew, by nature or marriage, or as near as between landlord and tenant . . . or if he may receive a direct pecuniary benefit by the determination of any proceeding before him.” Although phrased differently, the standards of this statute, relating to the disqualification of a judge are remarkably similar in effect to General Statutes §§8-11 and 8-21. The former is less stringent in one respect, prohibiting a direct pecuniary benefit as opposed to the indirect pecuniary benefit prohibited in the latter statutes. The judicial disqualification statute is more stringent in that certain relationships are per se disabling whereas the administrative statutes arguably contemplate a case-by-case finding of a direct or indirect personal stake in the outcome.

       There is even a technical basis for the disqualification of a juror if he is a recipient of a pension from a corporation owning stock in a corporate party to the litigation which the juror must decide. McCarten v. Connecticut Co., 103 Conn. 537, 131 A. 505 (1925).

      I note that although the majority opinion cites this law review article with approval; see p. 562, supra; it does not refer to this part of it, which is contrary to the opinion’s central thesis.

       The plaintiff does not suggest that Tillinghast and Dutton should have been replaced by substitutes, only that they should have disqualified themselves from the hearing. Indeed, such a substitution would be anomalous since the substitutes would neither be members of the board nor members of an impartial hearing panel selected in the statutory manner.

       Another case cited with approval by the majority; Amos Treat & Co. v. Securities & Exchange Commission, 306 F.2d 260 (D.C. Cir. 1962); has been characterized by Professor Davis as an “extreme case” which “probably is no longer law,” and Davis points out that “Withrow v. Larkin, 421 U.S. 35 [95 S. Ct. 1456, 43 L. Ed. 2d 712] (1975) probably cannot be reconciled with Amos Treat. ” 3 Davis, Administrative Law (2d Ed. 1980) § 19.4, p. 389.


author: Hull, J.

text:
    In re Estate of Frederick F. Brewster
    (2425)
    Hull, Borden and Spallone, Js.
    Argued June 12
    decision released September 11, 1984

      Lawrence R. O’Brien, pro se, the appellant (guardian ad litem), with whom, on the brief, was Randi F. Mezzy.

      H. Chandler Clark, for the appellee (Colonial Bank, trustee).
   Hull, J.

This appeal by the guardian ad litem for unborn and unascertained remaindermen under the will of the decedent, Frederick F. Brewster, is from a judgment of the trial court ordering the Hamden Probate Court to approve the trustee’s account under that will for the 1980-81 trust year. The guardian ad litem alleges that the court erred by construing the will in a manner which allowed the trustee to pay the entire income of the trust in question to the beneficiary thereof during the 1980-81 trust year. We find no error.

The facts are not in dispute. The will of Frederick F. Brewster, duly probated in the district of Hamden, created several trusts, one of which was for the benefit of his granddaughter, Pamela Brewster Duffy (The Duffy Trust).

Pamela Duffy was bom on May 24,1956, and reached the age of twenty-one in 1977. The Duffy Trust was similar to eight other trusts created by the testator for each of his grandchildren. Each of the trusts provides, essentially, that from the date of the creation of the trust until the beneficiary of that trust reaches the age of twenty-one, the income may be used and expended by the trustee, at its discretion, for the support, maintenance, education and welfare of the beneficiary. After the beneficiary’s twenty-first birthday, the trustee is directed to pay to her one half of the annual trust income, and, upon the occurrence of the beneficiary’s thirtieth birthday, the trust terminates and the corpus is to be transferred to her.

On April 3,1980, when Pamela Brewster Duffy was twenty-three years of age, she requested that the trustee pay her all of the net trust income under her trust so that she could pay off a demand note which she had made. The trustee paid over to her the trust income in the amount of $69,130.26 and, on October 23, 1981, it filed its annual account for the trust with the Hamden Probate Court.

After a hearing on this account, held as a result of the objection of the guardian ad litem for unborn and unascertained remaindermen, the Probate Court disallowed the account on the grounds that the distribution of the income to Duffy was contrary to the provisions of the will. The trustee appealed to the Superior Court and the matter was referred to a state referee for further hearings. The referee sustained the appeal and ordered the Probate Court to approve the trustee’s account. From that order the guardian appeals, claiming error in the referee’s construction of the will.

The focus of this appeal is whether the referee properly construed that portion of the will which delineates the powers and duties of the trustee over the portion of the trust income which is not paid to the beneficiary as a matter of right. While the terms of the trust are clear that one half of the annual trust income is to be paid to the beneficiary yearly, it is as to the other half of the income that a dispute arises. Clause (b) of part II of article nine of the will, while it expressly modifies the obligation of the trustee to the beneficiary once she reaches the age of twenty-one, does not expressly revoke the trustee’s power to use and expend the trust income, at its discretion, for the support, maintenance, education and welfare of the beneficiary.

It is a long accepted canon of construction that “[w]ords . . . are not to be construed as importing a condition if they are fairly capable of a different construction.” Hershatter v. Colonial Trust Co., 136 Conn. 588, 594-95, 73 A.2d 97 (1950). Similarly, “an express and positive devise or bequest in fee cannot be cut down to an inferior estate by a subsequent clause in the will unless that is equally express and positive. Fanning v. Main, 77 Conn. 94, 99, 58 A. 472 [1904]; Hull v. Hull, 101 Conn. 481, 486, 126 A. 699 [1924]; Peyton v. Wehrhane, 125 Conn. 420, 426, 6 A.2d 313 [1939].” Stanton v. Stanton, 140 Conn. 504, 511, 101 A.2d 789 (1953); see also Pond v. Porter, 141 Conn. 56, 65, 104 A.2d 228 (1954).

With respect to the present will, we hold that, absent an express intent to the contrary, the modification of the trustee’s duties which occurs when the beneficiary reaches the age of twenty-one should not be construed to terminate its discretion as to the expenditure of the remaining one half of the trust income for the benefit of the beneficiary.

This construction of the will is further supported by the rule that, if possible, effect is to be given to all parts of a will; Hills v. Hart, 136 Conn. 536, 543, 72 A.2d 807 (1950); and that the separate parts of a will are to be harmonized where possible. Reaney v. Wall, 134 Conn. 663, 667, 60 A.2d 505 (1948); Cumming v. Pendleton, 112 Conn. 569, 574, 153 A. 175 (1931). Here, the only way to give this entire provision of the will continuing application after the beneficiary of the trust attains the age of twenty-one is to interpret it to provide the trastee with continuing discretion over the half of the annual income not distributed as a matter of course.

In addition, in clause (d) of part II of article nine of the will, the intent of the testator on this issue is further demonstrated. That provision dictates that, upon reaching the age of thirty, the beneficiary is to receive the corpus of the trust and “any accumulated, unexpended or accrued income.” It is clear from this provision that the testator did not intend that a set sum would be accumulated at the termination of the trust. The testator’s use of the word “unexpended” here suggests that he foresaw the situation in which there would be no unexpended income from the trust. It definitely suggests that the amount which might be left at the termination of the trust was very uncertain. Certainly, if the trustee’s discretion ended when the beneficiary attained the age of twenty-one, it would be guaranteed that one half of the income for at least nine years would have accumulated. Yet, the testator did not intend or provide for this result, or he would have inserted the words “all income” or simply “the income” instead of “any income.” See Hartford-Connecticut Trust Co. v. Hartford Hospital, 141 Conn. 163, 169, 104 A.2d 356 (1954); New Haven Bank v. Hubinger, 117 Conn. 417, 424, 167 A. 914 (1933). Rather, he conceived that during the nine years immediately prior to termination of the trust, some or all of that income might be distributed to the beneficiary.

Having determined that the trustee did have the discretion to disperse the remaining trust income, we cannot say that the trustee’s disbursal of those funds was, in this case, an abuse of that discretion. The terms of the trust do not limit the trustee’s discretion in any way, as would be the case, for example, had the words “if necessary” been used. See Stempel v. Middletown Trust Co., 127 Conn. 206, 220, 15 A.2d 305 (1940). Rather, this was a gift which took into account Duffy’s needs given her station in life; Cromwell v. Converse, 108 Conn. 412, 426-28,143 A. 416 (1928); and did not require that her outside income be considered by the trustee in exercising its discretion. Hoops v. Stephan, 131 Conn. 138, 148, 38 A.2d 588 (1944). Rather, the standard use of the term “discretion” should prevail: “[T]he law is that the use of the word ‘discretion’ in a trust instrument, in relation to the powers of a trustee, is generally read by the courts to be coextensive with a duty to exercise discretion ‘prudently.’ ” Jackson v. Conland, 178 Conn. 52, 65, 420 A.2d 898 (1979) (Longo, J., concurring). We cannot say that this standard was not fulfilled in the present case.

Thus, we hold that the trustee had the discretion to authorize the payment of all of the trust income to Duffy, and that, in this case, that discretion was not abused.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       Article nine, part II of the will of Frederick F. Brewster, insofar as it is relevant, reads as follows:
      “Part II. Two-thirds (2/3) thereof I give, devise and bequeath to the trustee hereafter named, upon trust, for the uses and purposes hereafter stated: “(a) The trustee shall divide the properties constituting such two-thirds (2/3) part into as many equal shares as are necessary to provide one for each of my grandchildren then surviving. Each of such shares shall constitute a trust fund for and be designated with the name of one of such grandchildren. Each of the trust funds thus established shall continue until the grandchild for whom designated attains the age of thirty (30) years or dies, whichever event shall first occur, and thereupon such trust shall terminate.
      “(b) The net income of each fund, in the discretion of the trustee, may be used and expended for the support, maintenance, education and welfare of the grandchild for whom designated, or it may be accumulated and from time to time added to the principal of the fund. If the trustee in its discretion pays such net income or a part thereof to the guardian of such grandchild or to the person with whom such grandchild is residing, it shall not be required to account further for the same. If a grandchild is twenty-one years of age or later attains that age, the trustee shall thereafter and until the termination of the trust pay one-half (1/2) of the net income of his or her fund, in quarterly installments, to such grandchild.
      “(c) Upon termination of such a fund by reason of the grandchild for whom designated attaining the age of thirty (30) years, the principal thereof, including any additions thereto and any accumulated, unexpected or accrued income thereof, shall be conveyed, assigned, transferred and paid over to such grandchild, freed and discharged of all trust.
      “(d) Upon termination of such a fund by the death of the grandchild for whom designated, the principal thereof, including any additions thereto and any accumulated, unexpended or accrued income thereof, shall be conveyed, assigned, transferred and paid over to the person or persons appointed and in the amounts or proportions prescribed by such grandchild in exercising the power of appointment granted for the remainder of such fund in paragraph (e) hereof; or if such grandchild has not effectually or completely exercised such power, then such property as is not disposed of, shall be conveyed, assigned, transferred and paid over to the then suriviving issue of such grandchild, in equal shares, per stirpes, freed and discharged of all trusts; or, if there be no such surviving issue, then such property shall be divided into as many equal parts as are necessary to provide one part for each similar fund that then exists hereunder or that has terminated and has been distributed, and one of such parts shall then be conveyed, assigned, transferred and paid over to the trustee of each such fund then in effect to be added to the principal and follow the disposition thereof and to the person or persons to whom a fund has been distributed, or their executors or administrators, and in the same proportions as were used in such prior distribution.”

       See footnote 2, supra.

       See footnote 2, supra.

       The referee found that the request was discussed by Duffy and a trust officer of the trustee before the money was given out, but no memorandum of that discussion exists to evidence the scope of that discussion.


text:
    Ann Buckley v. Frank Lovallo et al.
    (2372)
    Dannehy, C.P.J., Dupont and Borden, Js.

      Argued May 1
    decision released September 18, 1984

      Richard Fuchs, with whom, on the brief, was, Brenda C. Morrissey, for the appellant-appellee (plaintiff).

      Thomas L. Bray ton, for the appellee-appellant (defendant Frank Lovallo).

      Herbert J. Shepardson, with whom, on the brief, was Joseph Adinolfi, Jr., for the appellee (defendant Sharon Hospital, Inc.).
   Borden, J.

This is a medical malpractice action brought by the plaintiff against Frank Lovallo, a general surgeon, and Sharon Hospital. The plaintiff appeals from the judgment, claiming error in the direction of the verdict for the hospital, and in an evidentiary ruling and the jury charge affecting damages. Lovallo cross appeals claiming insufficiency of the evidence against him. We find error only on the plaintiff’s appeal regarding the issue of damages.

The jury could reasonably have found the following facts. The plaintiff sought a breast reduction operation after losing approximately seventy pounds. Her breasts, even after the weight loss, remained heavy and pendulous. She suffered pain and had deep ridges on her back where her brassiere straps cut into her shoulders. She had difficulty finding clothes that fit, and felt topheavy.

The plaintiff sought the advice of Robert I. Scileppi, a plastic surgeon in Poughkeepsie, New York, who told her that an operation was medically indicated but recommended that she see her regular physician before going forward with the operation. She went to see her regular physician who recommended that a local doctor, Lovallo, perform an operation. After an examination by Lovallo and a discussion of the operation and fees with him, the plaintiff decided to have Lovallo perform the operation. Lovallo told the plaintiff he had performed this operation many times, that her breasts would be “contoured fine” and that her nipples would be reduced in size to conform to the new size of her breasts. Lovallo performed a bilateral reduction mammoplasty using a Conway-type procedure, which resulted in visible welt-like scars above the inframammary crease, flat and misshapen breasts, and overlarge nipples which were insensate and misplaced. The plaintiff suffered adverse psychological reactions to these physical conditions.

The trial court directed a verdict for the hospital and denied the plaintiff’s motion to set aside this verdict. The claim against Lovallo was submitted to the jury which returned a plaintiffs verdict for $30,000. The plaintiff moved for an additur and to set the verdict aside as to damages only. These motions were denied. Lovallo moved for a judgment notwithstanding the verdict, which the court denied.

I

The court correctly granted the hospital’s motion for a directed verdict. The plaintiff’s claim against the hospital was based on the theory of corporate negligence. Her claim was in essence that the hospital was negligent in failing to promulgate rules and regulations, in granting surgical privileges to Lovallo which permitted him to perform a procedure which he was unqualified to perform, and in failing to evaluate and monitor his professional competence. She argues that she produced sufficient evidence to permit these claims to go to the jury. We disagree.

Corporate negligence is the failure of the officers or directors who constitute the governing board of a corporation, acting as a board, to maintain the standard of conduct required of the particular corporation, rather than the personal negligence of the corporation’s ordinary employees. Bader v. United Orthodox Synagogue, 148 Conn. 449, 452-53, 172 A.2d 192 (1961); Tocchetti v. Johnson Memorial Hospital, 130 Conn. 623, 627-28, 36 A.2d 381 (1944). Pursuant to her complaint, the plaintiff was required to produce expert testimony of the standard of care applicable to similar hospitals similarly located, and expert testimony that the hospital’s conduct did not measure up to that standard. Pisel v. Stamford Hospital, 180 Conn. 314, 334-35, 430 A.2d 1 (1980); Parowski v. Bridgeport Hospital, 144 Conn. 531, 534, 134 A.2d 834 (1957); McDermott v. St. Mary’s Hospital Corporation, 144 Conn. 417, 422, 133 A.2d 608 (1957). The failure of a hospital to have written rules for its conduct is insufficient to establish a violation of the standard of care in the absence of a proper showing that having such rules is the standard practice. Evans v. Lawrence & Memorial Associated Hospitals, Inc., 133 Conn. 311, 316, 50 A.2d 443 (1946).

The evidence presented here was insufficient to establish a standard of care applicable to the hospital or to establish that any such standard was violated. The plaintiff argues that the testimony of Paul Sternlof, the executive director of the hospital, was sufficient to establish the required standard of care. This argument is without merit. Sternlof testified to the standards of the Joint Commission on Accreditation of Hospitals (JCAH), a voluntary accrediting organization to which the hospital belonged and which had accredited the hospital, and to the regulations of the hospital and its medical staff. His testimony is bereft, however, of any suggestion that these standards and regulations constituted a standard of care applicable to similar hospitals similarly located, or that the hospital’s conduct here failed to meet any such standard. Cf. Pisel v. Stamford Hospital, supra, 335-39. Indeed, his testimony was that the criteria of the hospital, at the time of the operation by Lovallo, for the granting of surgical privileges were usual, customary and historic.

The evidence, therefore, failed to establish the standard of care applicable to the hospital or a breach of any such standard. A directed verdict is appropriate “when the jury could not reasonably and legally have reached any other conclusion.” Sestito v. Groton, 178 Conn. 520, 522, 423 A.2d 165 (1979).

II

The evidence presented against Lovallo was sufficient to be presented to the jury and thus his motion for a directed verdict was properly denied. The plaintiff was required to establish, through expert testimony, the standard of care to which this defendant was to be held and a violation of that standard. Pisel v. Stamford Hospital, supra, 334. Lovallo claims that the evidence produced by the plaintiff was insufficient to establish the applicable standard of care or that a violation of that standard proximately caused the plaintiff’s injuries. We disagree.

The duty of care to which a physician is held in a malpractice action is “that degree of care, skill and diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily possess and exercise in like cases.” Fitzmaurice v. Flynn, 167 Conn. 609, 616, 356 A.2d 887 (1975), quoting Snyder v. Pantaleo, 143 Conn. 290, 292, 122 A.2d 21 (1956). Expert testimony to establish this standard is required; Fitzmaurice v. Flynn, supra; but the qualifications of the expert witness are not measured by whether the expert is in the same specialty as the defendant; id., 617; nor by whether the expert practiced in the locale where the incident occurred; Pisel v. Stamford Hospital, supra; but by whether the expert knows what the standard of care is in the locale where the defendant practices sufficiently for the witness to give an opinion as to the defendant’s conformity with that standard. Fitzmaurice v. Flynn, supra, 618.

The plaintiff produced as expert witnesses two plastic surgeons who practice in New York in towns near Connecticut. Philip C. Bonanno testified as follows. He had performed seventy-five bilateral reduction mammoplasties prior to 1977 and was familiar with the standards for performing this operation in Connecticut as they were in 1977. Bilateral reduction mammoplasty falls into the realm of plastic surgery. He did not know of any general surgeons who performed the operation nor the standards they would use. The procedure which the defendant used to reduce the plaintiffs breasts was the Conway reduction mammoplasty with free nipple grafts, but, given the standards in Connecticut in 1977, a procedure more in keeping with the preservation of the aesthetic appearance of the breasts should have been used. The Weiss or Strombeck operative procedures with a McKissock procedure for transposition of the nipple should have been used. The procedure performed on the plaintiff was below the standard of care for performing the Conway procedure in 1977 and corrective surgery was required.

Robert I. Scileppi was the doctor whom the plaintiff initially consulted and to whom she returned after the unsatisfactory operation. He testified as follows. He had performed between fifty and sixty bilateral reduction mammoplasties from 1971 to 1981 and was familiar with the standard of care for doctors performing this operation in the general neighborhood of Sharon, Connecticut in 1977. The standards for performing this operation were the same among specialty groups, such as plastic surgeons and general surgeons. The Conway-type operative procedure was the incorrect procedure to be used on the plaintiff, and the results of this procedure show a deviation from the standard of care. While he personally does not like the Strombeck procedure, and uses a modified version of the McKissock procedures himself, use of the Strombeck procedure or a modification of that procedure would have been acceptable by a plastic surgeon in 1977. There were twenty-five recognizably different procedures for breast reduction developed since 1923, but the plaintiff did not fall into the category of women, usually older, who require a Conway-type operation.

A verdict should be directed “only when the jury could not reasonably and legally have reached any other conclusion.” Sestito v. Groton, supra, 522. Taking the testimony of Bonanno and Scileppi together, the jury could have found that it was negligent for Lovallo to have performed the Conway-type procedure and, further, that he did not properly employ the technique called for under that procedure. Thus, the jury could reasonably have found that the defendant was negligent in performing the wrong operation and in performing it improperly, and that his negligence proximately caused the plaintiffs injuries. Lovallo’s motion for judgment notwithstanding the verdict, like the motion for a directed verdict, was correctly denied.

Ill

The plaintiff claims that three errors improperly affected the amount of damages awarded by the jury: the exclusion of evidence showing a causal connection between the breast surgery and a subsequent suicide attempt by the plaintiff; the standard by which the trial court instructed the jury to gauge the plaintiff’s claim of mental suffering; and a claimed misstatement of the evidence by the court in its charge on lost earning capacity. We find error on the first two claims. This renders it unnecessary for us to consider the third claim, since, although it appears to have merit, the claimed error is not likely to recur.

A

The court excluded opinion testimony by Edwin Dawe, a psychiatrist, on the causal relationship between a suicide attempt by the plaintiff in 1978 and the breast surgery, and it refused to admit a hospital bill for the plaintiff’s treatment after the suicide attempt. The basis of the ruling was that this evidence was beyond the scope of the plaintiff’s complaint. We disagree.

The plaintiff alleged that “[sjevere psychological sequelae” resulted from the defendants’ negligence. A suicide attempt could reasonably be considered as a severe psychological result of the breast operation, and so was adequately pleaded. The defendants were aware of the suicide attempt through discovery proceedings, and do not claim surprise by the attempt to introduce the evidence relating to it. See Bruneau v. Quick, 187 Conn. 617, 625, 447 A.2d 742 (1982). “[Sflight linguistic ambiguity” in the pleadings should not, under modern pleading rules, deprive parties of the opportunity to provide proof on issues adequately raised in the pleadings and of which the parties are apprised. Schenck v. Pelkey, 176 Conn. 245, 255, 405 A.2d 665 (1978); cf. Plawecki v. Angelo Tomasso, Inc., 1 Conn. App. 48, 53, 467 A.2d 944 (1983).

This evidence, if believed, could have affected the amount of the award of damages. The ruling of the court excluding this evidence was harmful error.

B

The court charged the jury with respect to compensation for mental suffering, in part, as follows: “A plaintiff injured by the wrongdoing of another is just as much entitled to be compensated for mental suffering thereby, and the results that would approximately [sic] follow from it, as well as physical suffering. From the nature of the evidence in support of such suffering, however, it is difficult to prove or disprove its existence or extent with certainty, and there is always the possibility that there is no real basis for the claim or that the suffering, to a greater or lesser extent, is exaggerated. For that reason, you should scrutinize with care the evidence offered and approach the matter with caution. But if you are satisfied that a fair preponderance of the evidence supports the claim, the plaintiff is entitled to be compensated for mental distress and suffering.” (Emphasis added.)

The court, in effect, instructed the jury, by the language italicized above, to apply a more exacting gauge to the plaintiff’s claims of mental suffering than to those of physical suffering. This was error.

The language of this jury charge apparently derives from Orlo v. Connecticut Co., 128 Conn. 231, 21 A.2d 402 (1941), which the defendant argues represents the current state of our law applicable to the facts of this case. We disagree.

Orlo was the seminal case in Connecticut permitting, for the first time, recovery for negligently caused emotional distress, even though no physical impact or injury occurred at the time of the infliction of that distress, as long as the plaintiff was within the range of physical danger. Id., 239. The Orlo court advised that courts and juries use caution, scrutinize evidence of mental suffering with care, and allow such recovery only upon clear and satisfactory proof. Id., 240-41. Such cautionary language and strict scrutiny might have been fitting at the time Orb was decided because a new theory of recovery was being established. This theory, however, has been expanded; see, e.g., Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 398 A.2d 1180 (1978) (recovery for unintentionally-caused emotional distress does not depend on proof of physical injury or risk of physical harm); and recovery of this type is no longer revolutionary. Moreover, we are unaware of any Connecticut case in which the language of Orb is either used or cited with approval, for claims of emotional distress flowing from physical injury, as is the case here.

“A plaintiff may recover damages in a personal injury action for pain and suffering even when such pain and suffering is evidenced exclusively by the plaintiffs subjective complaints.” Delott v. Roraback, 179 Conn. 406, 409, 426 A.2d 791 (1980). We see no reason to subject a claim of mental suffering, which is ordinarily evidenced by subjective complaints, to stricter scrutiny or greater care than a claim of physical suffering evidenced by the same type of complaints. "[Mjedical science has unquestionably become sophisticated enough to provide reliable and accurate evidence on the causes of mental trauma.” Culbert v. Sampson’s Supermarkets, Inc., 444 A.2d 433, 436 (Me. 1982). Medical science and mental health fields have advanced sufficiently to enable a trier of fact to determine the extent of mental suffering by the same standard of proof as physical suffering. See Wallace v. Coca-Cola Bottling Plants, Inc., 269 A.2d 117, 121 (Me. 1970). In today’s world both supply equal grist for the jury’s mill, based on “[tjhe ordinary knowledge acquired from everyday experience by the jurors . . . .’’Id., 122. A plaintiff need only establish a claim for mental or emotional distress by a fair preponderance of the evidence, unfettered by any additionally exacting gauge.

Although the court, at the end of the challenged portion of the charge, adverted to a burden of proof by a fair preponderance of the evidence, the gist of the charge clearly indicated that the jury should apply that standard more critically to the plaintiff’s claims of mental suffering than to the rest of her case. The jury was likely, therefore, to have been misled as to the correct standard to use in determining damages for mental suffering. This charge constituted material error. Gaul v. Noiva, 155 Conn. 218, 220, 230 A.2d 591 (1967).

There is error in part on the plaintiff’s appeal, the judgment in favor of the plaintiff is set aside and the case is remanded for a new trial on the issue of damages only.

There is no error on the cross appeal.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The plaintiff suggests that we follow Darling v. Charleston Community Memorial Hospital, 33 Ill. 2d 326, 211 N.E.2d 253 (1965), where, without supporting expert testimony, the hospital’s own regulations and the standard of accrediting agencies were permitted to define the duty of care. This rule was subsequently limited in application to exceptional circumstances; see Collins v. Westlake Community Hospital, 12 Ill. App. 3d 847, 299 N.E.2d 326 (1973); and, in any event, is contrary to the prevailing rule in Connecticut.

       The “general neighborhood” has been enlarged to include not only Connecticut but the nation as a whole. Logan v. Greenwich Hospital Assn., 191 Conn. 282, 301, 465 A.2d 294 (1983).