text:
    Albert Shulman v. Connecticut Bank and Trust Company et al., Coexecutors (Estate of Joseph L. Shulman), et al.
    (4084)
    Spallone, Daly and Bielüch, Js.
    Argued October 10
    decision released December 10, 1985

      Ira B. Grudberg, with whom, on the brief, was Jonathan Katz, for the appellant (plaintiff).

      Warner K. Depuy, for the appellee (named defendant).

      David E. Ormstedt, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (defendant Joseph I. Lieberman).
   Bieluch, J.

The plaintiff appealed to the Superior Court from a decision of the Probate Court for the district of Hartford ordering the distribution of the decedent’s residuary estate to The Joseph L. Shulman Foundation, a charitable trust. After a trial de novo, the Superior Court affirmed the order of distribution. The plaintiff, the decedent’s estranged brother, has appealed from that judgment to this court.

The facts leading to this litigation are not in dispute. The decedent, Joseph L. Shulman, was an attorney residing in Hartford and a substantial holder of real estate and other interests in the local area. On December 13, 1965, he executed his last will and testament. After making numerous specific bequests, he left the residue of his estate, under clause fourteen, to the Beat-man Foundation, Inc., a nonprofit Connecticut corporation, located in South Norwalk. Approximately one year later, on December 30,1966, the decedent created The Joseph L. Shulman Foundation as an irrevocable charitable trust, declaring himself to be the trustee. This foundation subsequently qualified as a tax exempt organization under Internal Revenue Code § 503 (c) (3).

Paragraph seven of the Shulman Foundation trust declaration reads as follows: “The trustee is authorized if he desires to do so to organize a corporation under the laws of the State of Connecticut, or any other state of the United States. The corporation so organized shall be a charitable organization and shall be organized and operated for the same general purposes as this trust. The name of such corporation shall include the settlor’s name. Upon the organization of such corporation, the trustee may transfer a portion or all of the trust fund to such corporation.” The failure of the trustee to organize such a corporation for the foundation is at the heart of the present litigation.

On May 16, 1972, the decedent executed a codicil to his last will and testament in which he revoked article fourteen and substituted the following in its place: “FOURTEENTH: All the rest, residue and remainder of my estate, as well as real and personal property, wheresoever situated, I give, devise and bequeath to THE JOSEPH L. SHULMAN FOUNDATION, INC., a non-profit Connecticut corporation, with its principal office in the City of Hartford, State of Connecticut, provided, however, that in the event that said bequest so bequeathed under the provisions of this Article ‘FOURTEENTH’ of this my Will should not be allowed as a deduction in computing the value of my taxable estate (both Federal and State), then I direct that said residuary estate shall be distributed by my Executors and Trustees to such other charitable, educational or other eleemosynary institutions as my said Executors and Trustees shall determine in their absolute discretion, and I give, devise and bequeath the same accordingly.” In brief, the codicil merely substituted The Joseph L. Shulman Foundation, Inc., “a non-profit Connecticut corporation,” as the residuary legatee for the Beatman Foundation, Inc., previously identified in the original will as “a non-profit Connecticut corporation,” which identification may have misled the attorney who drew the codicil.

Four years after the execution of the codicil, on June 24, 1976, the testator died. The decedent’s will and codicil were admitted to probate in the Probate Court for the district of Hartford. After a hearing on the settlement and allowance of the administration account, the court, on August 25, 1982, made, inter alia, the following findings, order and decree: “that the decedent intended to make a charitable distribution of the rest, residue and remainder of his estate; that The Joseph L. Shulman Foundation is a charitable organization; that the intent of the decedent, as expressed in the Codicil and Will of the decedent, will be fulfilled by ordering distribution to The Joseph L. Shulman Foundation; and, that therefore, in accordance with the Codicil to the Will of the decedent, the sole distributee of the rest, residue and remainder of said estate is The Joseph L. Shulman Foundation of Hartford, Connecticut. Said account is accordingly approved and allowed, and it is ORDERED that the rest, residue and remainder of said estate be transferred and paid over to the distributee above named according to law and the provisions of the Will of said decedent.”

The plaintiff, who was expressly disinherited by the will, appealed from this order and decree. After a trial, the court upheld the Probate Court decision. The plaintiff has now appealed further to this court.

The principal claims of the plaintiff are that the court erred (1) in reforming the will to designate a new beneficiary to take a void bequest, and (2) in admitting the scrivener’s testimony to establish a draftsman’s error in the codicil. It is the plaintiff’s contention that the residuary estate should pass by intestacy for lack of an existing legatee or distributee. Since there was no qualifying corporate entity known as The Joseph L. Shulman Foundation, Inc., in existence upon the testator’s death, he contends that the legacy lapsed. The naming of the unincorporated trust of similar name as distributee by the probate and trial courts, therefore, was an illegal reformation of the decedent’s will. In substance, the plaintiff maintains that the issue concerns not a misdescription of a legatee, but a nondescription, the description of a nonentity, leaving the residue of the estate for distribution by intestacy. The defendant contends, to the contrary, that the court properly found an unintentional misdescription only and did not reform the testator’s will and codicil.

Over the objection of the plaintiff, the trial court heard testimony from the attorney who drew the codicil on May 16, 1972, shortly before the decedent left on the same day for a visit to Israel. The attorney testified that the decedent and he had been law school classmates and had a friendly, not professional, relationship. In the early part of May, 1972, he was asked to prepare the codicil. It was then that he saw the original will. He further testified that “the primary purpose of the codicil was to eliminate the Joseph Beatman Foundation” and to substitute for it “The Shulman Foundation as he knew it and as I knew it.” Admitting that he had “made a scrivener’s mistake” in misdescribing the foundation, there was no doubt in his mind “that this bequest is to no one but The Shulman Foundation without the INC.” On the basis of the draftsman’s testimony, the trial court found that the “decedent’s true intent was to benefit the existing Foundation, and that [Attorney] Korn erroneously misdescribed the Foundation as a corporation when it in fact was and is a trust.”

There is a well established presumption against the intent of a testator to leave any part of his estate intestate and courts will endeavor to avoid a construction of a will resulting in partial intestacy. Wallace v. Wallace, 103 Conn. 122, 134, 130 A. 116 (1925). The designation by the testator in this case of charitable organizations as contingent residuary beneficiaries of his estate after designating a charitable organization as the primary residuary beneficiary is expressive of his intent to dispose of the entire estate without intestacy. By primary or contingent designation, the residue was to go to charity. He appeared to close all doors of his estate to intestacy, even to the extent of specifically excluding, in paragraph thirteen of the will, the plaintiff and other heirs not otherwise named as legatees.

By his codicil, the testator expressed his belief that The Joseph L. Shulman Foundation, Inc., did then, and would continue to, exist. Article fourteen of the will in its original form provided for the contingent charitable beneficiaries to receive the residuary estate “if said BEATMAN FOUNDATION, INC. ceases to exist . . . .” This contingency was not retained in article fourteen, as amended by the codicil substituting THE JOSEPH L. SHULMAN FOUNDATION, INC., as the primary charitable beneficiary of the residue of the estate. The intent expressed thereby is that he knew of what he spoke—a charity which he created in his own name, which he knew existed and which he knew would continue to exist because he created it that way. Paragraph seven of the trust declaration, which authorized the trustee to organize a corporation, specifically provided that “[t]he name of such corporation shall include the settlor’s name.” His sole intent was to fund and perpetuate The Joseph L. Shulman Foundation then in existence, whether incorporated or not.

Our reports record that other legacies to misnamed or misdescribed beneficiaries have been allowed by the courts. In those cases, as here, extrinsic evidence was permitted for the identification of the proper legatees. The rule concerning the use of extrinsic evidence is that it is admissible to identify the devisee or legatee named or the property described in a will, or to make clear the doubtful meaning of language used in a will. On the other hand, it is never admissible for the purpose of showing an intention not expressed in the will itself, or for the purpose of proving a devise or bequest not contained in the will. Connecticut Junior Republic v. Sharon Hospital, 188 Conn. 1, 9, 448 A.2d 190 (1982).

Brinsmade v. Beach, 98 Conn. 322, 119 A. 233 (1922), was a suit to determine the construction of a will reserved to the Supreme Court for its advice upon the facts alleged in the complaint. By clause three, the testatrix gave and bequeathed “to the Ladies Society of Stratford two hundred dollars the interest to be used yearly to fit missionary boxes.” There was no society known by that name at the time of the will or death. The Women’s Missionary Society of the Congregational Church was, however, in existence. The testatrix had been its president for many years. She often stated that she intended to leave it a bequest. The court’s answer to the reservation was as follows: “From these facts the identification is sufficiently clear, that the testatrix intended by this designation the society known as the ‘Women’s Missionary Society of the Congregational Church.’ If the description of the legatee can be ascertained by extrinsic evidence to denote the society meant by the testator and to distinguish it from all others, the bequest will be sustained and the surrounding circumstances may be inquired into in order to ascertain the testator’s intent. Brewster v. McCall’s Devisees, 15 Conn. 274, 291 [1842].” Brinsmade v. Beach, supra, 332-33.

The trial court relied upon Eccles v. Rhode Island Hospital Trust Co., 90 Conn. 592, 98 A. 129 (1916), in affirming the order of the Probate Court. Eccles was also a reservation for the advice of the Supreme Court upon an agreed statement of facts. In that case the testator made charitable bequests to “the Rock Nook Home for Children, a corporation located in said City of Norwich.” There was not and never had been any corporation by the name of Rock Nook Home for Children, or by any name of like sound or meaning, in the state. There was, however, a home for destitute children in Norwich commonly known to the public by the name of “Rock Nook Children’s Home,” owned by the United Workers of Norwich, a corporation. The decedent had been interested in the work of the home and sought places there for children in his district. The Probate Court appointed the United Workers as trustee for the bequests made to the Rock Nook Home for Children. The decedent’s brother and sole heir appealed from that decree. In advising that the probate decree be confirmed, the court held: “It is apparent from the terms of the will, interpreted in the light of the agreed statement of surrounding facts, that the testator intended these bequests for the institution known to him as the Rock Nook Home for Children, located in Norwich, in whose work he was greatly interested. . . . The misdescription of the Children’s Home as a corporation is not fatal, because the legatee is fully identified notwithstanding the misdescription.” Id., 596.

Another reservation for construction of a will involving the misdescription of a legatee was Weed v. Scofield, 73 Conn. 670, 49 A. 22 (1901). In the will involved there, a bequest was made to the “Institution for the Relief of the Ruptured and Crippled in the City of New York.” There was no institution or corporation in New York known by that name. There existed, however, a corporation named “The New York Society for the Relief of the Ruptured and Crippled.” All parties agreed that this was the institution which the testator intended to designate. The court found, without discussion, that the latter was the legatee intended by the testator in the will describing the former.

Still an earlier reservation concerning the misdescription of a charitable remainderman was American Bible Society v. Wetmore, 17 Conn. 181 (1845). In that case, the trial court made the following findings of fact before seeking the advice of the Supreme Court: a residuary bequest was made to the Foreign Mission Society; The American Board of Commissioners for Foreign Missions was commonly known to the testatrix, and to the members of the church and congregation, by the name and description of the “Foreign Mission Society”; and by the words “Foreign Mission Society” the testatrix intended to describe The American Board of Commissioners for Foreign Missions. Id., 182-83. Finding this intention proven, the Supreme Court held that “[t]he devise to The American Board of Commissioners for Foreign Missions, is good, under the appellation of The Foreign Mission Society.’ ” (Emphasis in original.) Id., 186.

A misdescription has been called a latent ambiguity that is explainable by parol evidence of the testator’s intention. Since the object is to discover the intention of the testator, the rule is well settled that any testimony is admissible for that purpose which is relevant under the general principles of evidence. Any fact or circumstance, which, from experience or observation, may fairly be presumed to have had an influence on his mind in inducing him to make the bequest or legacy, is admissible to prove his intention. Ayres v. Weed, 16 Conn. 291, 302 (1844). Ayres was an action of ejectment for land brought by the heirs at law against the defendants holding title under the Protestant Episcopal Society of New Canaan as devisee of the testator. The residue of the estate was willed to the Protestant Episcopal Church in New Canaan. The Protestant Episcopal Society was incorporated as a voluntary association. The terms “church” and “parish” were used indiscriminately with respect to this denomination and in the same sense as the term “society.” There was also another body of persons, not incorporated, composed of the communicants and all baptized persons in the society. This group constituted what was termed “the church” in the society. Parol evidence was introduced to show which of these bodies was intended by the devise. The jury decided that the intended devisee was the Protestant Episcopal Society and found for the defendants. The Supreme Court affirmed.

The earliest case in this line of precedents is Brewster v. McCall’s Devisees, 15 Conn. 274 (1842), where the advice of the court was sought concerning a devise to the Missionary Society of Foreign Missions, which did not exist at the time of the will or the death of the testator. The devise was claimed by, and allowed to, The American Board of Commissioners for Foreign Missions, also called the Foreign Missionary Society. In making this determination, the court stated that “[t]here is no rule applicable to devises, which requires the name of the devisee to be mentioned: it is only necessary that the description of the devisee be by words that are sufficient to denote the persons meant by the testator, and to distinguish them from all others. Nihil facit error nominis, cum de corpore constat. [An error in the name is of no consequence when there is certainty as to the person.] 6 Cruise’s Dig. 207. . . . In Rivers’case, 1 Atk. 410 [1737]. Lord Hardwicke said, ‘In the case of a devise, any thing that amounts to a designatio personae [a description of the person] is sufficient.’ ” (Emphasis in original.) Brewster v. McCall’s Devisees, supra, 293.

The trial court here properly allowed extrinsic evidence to establish the intent of the testator. From the scrivener’s testimony that The Joseph L. Shulman Foundation had been misdescribed in the codicil as a corporation, the court concluded that the testator intended the residuary estate to pass to the charitable organization and trust in existence and known as The Joseph L. Shulman Foundation. In this conclusion we agree. It may have been that the testator, in the rush of the circumstances under which the codicil was prepared, had forgotten the organizational details of his foundation. “If so, his lapse of memory could only be important if the inquiry were one as to his testamentary capacity. So far as concerns the construction of a will, the question always is, not what the testator meant to say, but what is meant by what he did say.” Weed v. Scofield, supra, 677; Smuda v. Smuda, 153 Conn. 430, 432, 217 A.2d 59 (1966). We find that the trial court properly identified The Joseph L. Shulman Foundation as the residuary legatee under article fourteen of the decedent’s will as modified by the codicil of May 16, 1972.

The plaintiff’s reliance upon Connecticut Junior Republic v. Sharon Hospital, 188 Conn. 1, 448 A.2d 190 (1982), and Smuda v. Smuda, supra, in support of his position that the court erred in permitting the scrivener of the codicil to testify as to the testator’s intent is misplaced. Connecticut Junior Republic was an appeal from an order and decree of the Probate Court “admitting to probate a will and codicils thereto.” Smuda was an appeal from a decree of the Probate Court “denying the plaintiff’s motion to reform the decedent’s will.” In neither case was the question before the court the correction by extrinsic evidence of a misdescription of an intended legatee or remainderman under a will.

In view of our holding, it is unnecessary to review the other issues raised in this appeal.

There is no error.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: Hull, J.

license: Public Domain

text:
    State of Connecticut v. Connie J. Alston
    (2812)
    Dupont, C. J., Hull and Borden, Js.

      Argued October 1
    decision released December 10, 1985

      Eugene J. Riccio, public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellee (state).
   Hull, J.

The defendant was convicted, after a trial to a jury, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). She appeals this conviction claiming that the trial court erred by failing to instruct the jury concerning the general intent required for commission of manslaughter in the first degree. Because we conclude that the court’s instructions could not possibly, in the context of the factual issues raised at trial, have misled the jury, we find no error.

The charges arose from a dispute between the defendant and her sister, Pamela Alston, during which the defendant stabbed Pamela fatally. While there was conflicting testimony as to the circumstances surrounding the stabbing, the jury reasonably could have found the following facts. On the date of the incident, the defendant was angry with her sister because she believed that Pamela had stolen some money from her. The defendant’s brother, James Alston, located Pamela and brought her to the defendant. Prior to confronting Pamela, the defendant picked up a kitchen knife. With the knife in hand, the defendant grabbed Pamela by the collar, and slapped her in the face twice with the flat part of the knife, while demanding that her money be returned. Thereafter, the defendant stabbed her sister.

The defendant’s sole claim on appeal is that the trial court failed to charge the jury properly concerning the general intent element of manslaughter under General Statutes § 53a-55 (a) (3). The state, however, argues that this claim of error should not be considered because the defendant neither requested a charge on general intent nor excepted adequately to the charge as given.

“Our general rule is that ‘[t]he appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or an exception has been taken immediately after the charge is delivered by the party appealing.’ Practice Book §§ 854, 3063; see also Practice Book § 3060F (c) (1) and (2).” State v. Fullwood, 193 Conn. 238, 259, 476 A.2d 550 (1984). Additionally, the exception taken must “state distinctly the matter objected to and the ground of the exception.” (Emphasis added.) Practice Book § 854. This requirement is imposed so that the trial court will be made aware of claims of error in time to take appropriate remedial steps. State v. Packard, 184 Conn. 258, 281, 439 A.2d 983 (1981). Accordingly, a trial court’s instructions to the jury will not be considered as error on appeal if the exception taken was “insufficient adequately to apprise the court of the deficiency in the charge in a manner which would permit the court to make a correction.” State v. Peary, 176 Conn. 170, 182, 405 A.2d 626 (1978), cert. denied, 441 U.S. 966, 99 S. Ct. 2417, 60 L. Ed. 2d 1072 (1979).

Here, counsel for the defendant did not submit a written request to charge on general intent. He did, however, object to the charge the trial court gave. In making his objection, counsel argued that “the definition of the elements ‘extreme indifference’ and the definition of recklessness itself . . . seem to indicate at least some type of intent.” (Emphasis added.) Counsel further stated: “I think the definition of those two terms require[s] an intent.” Counsel, however, never specified what type of intent should have been charged. Nor did he “state distinctly” how the charge as given was inadequate. Under these circumstances, it cannot be said that the trial court was adequately “apprise[d] ... of the deficiency in the charge.” Id.

The defendant argues that if the exception was inadequate, her claim still may be reviewed under State v. Evans, 165 Conn. 61, 65-66, 327 A.2d 576 (1973). The state contends that this case is not one which warrants such review. Under the Evans bypass rule “we must first determine whether the charge raises a question of constitutional dimension and, if so, whether the claim has merit. State v. Kurvin, 186 Conn. 555, 557, 442 A.2d 1327 (1982); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).” State v. Torrence, 1 Conn. App. 697, 702, 476 A.2d 598 (1984) (Torrence I), aff'd, 196 Conn. 430, 493 A.2d 865 (1985) (Torrence II). If these two questions are answered affirmatively, we will then review the charge to see if there was error and if so, whether reversal is warranted. Torrence I, supra, 702-705.

“Due process requires that the state establish beyond a reasonable doubt every essential fact necessary to establish the crime charged; Patterson v. New York, 432 U.S. 197, 204, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977); Mullaney v. Wilbur, 421 U.S. 684, 698, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975); In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); including intent where intent is one of those elements. Mullaney v. Wilbur, supra, 702.” State v. Kurvin, supra, 558. The trial court must, therefore, instruct the jury so that it clearly understands every element of the crime charged. Accordingly, the defendant’s claim that this was not done in this case raises a question of constitutional dimension. Our Supreme Court has “consistently held that colorable claims that jury instructions violated this aspect of due process are appealable even when not raised below. See, e.g., State v. DeMatteo, 186 Conn. 696, 705-706, 443 A.2d 915 (1982); State v. Perez, 181 Conn. 299, 311, 435 A.2d 334 (1980); State v. Arroyo, 180 Conn. 171, 173-74, 429 A.2d 457 (1980).” State v. Smith, 194 Conn. 213, 217, 479 A.2d 814 (1984). Because the defendant’s claim that intent was not properly charged is colorable, we will consider it under Evans.

Appellate review under Evans is limited. “Since an Evans claim by definition alleges a fundamental constitutional error, only certain rules are called into play and they are applied in the rarified context of such an allegation. There is, however, no separate set of substantive standards that produces lowered scrutiny of unpreserved claims of fundamental constitutional deprivation.” Torrence II, supra, 435. We examine the defendant’s claim with these criteria in mind.

To convict the defendant of manslaughter under General Statutes § 53a-55 (a) (3), the state was required to “prove that the defendant (1) engaged in conduct which creates a risk of death, (2) in so doing, [s]he acted recklessly (3) under circumstances evincing an extreme indifference to human life and (4) that [her] conduct caused the death . . . .” State v. Shine, 193 Conn. 632, 643, 479 A.2d 218 (1984). Additionally, the state had to prove that “the defendant intended to do the proscribed act, i.e., to engage in conduct that creates a grave risk of death to another person, under circumstances evincing extreme indifference to human life . . . .” (Footnote omitted.) Id., 639. Although the court instructed the jury extensively and properly concerning the first four elements of the crime and three times read the statutory definition of recklessly, it did not explain to the jury that the defendant must have intended to do the proscribed act. The failure so to charge was error.

The court’s failure to instruct on an essential element of the crime charged, while error, does not automatically require reversal of a subsequent conviction. State v. Kurvin, supra. Rather, “[a]n alleged defect in a jury charge which raises a constitutional question is reversible error if it is reasonably possible that, considering the charge as a whole, the jury was misled. State v. Ruiz, 171 Conn. 264, 273-74, 368 A.2d 222 (1976); State v. Rose, 169 Conn. 683, 687-88, 363 A.2d 1077 (1975).” State v. Smith, supra, 219. “When, as here, a jury instruction is challenged as not merely erroneous but as constitutionally deficient in a fundamental respect, the challenge can succeed only if it is reasonably possible that the jury was misled by the instruction into misunderstanding an issue that has fundamental constitutional significance. See State v. Smith, 194 Conn. 213, 219-20, 479 A.2d 814 (1984); State v. Kurvin, supra, 558, 565, 569.” Torrence II, supra, 435-36. When making this determination, it must be remembered that “[a] court’s charge is not to be examined in a vacuum. Rather, it is to be viewed in the context of the factual issues raised at the trial.” State v. Kurvin, supra, 558.

At trial, the defendant presented only one factual issue relevant to this analysis. She claimed that she did not intend to make the physical movement which resulted in her sister’s death. In support of this version of the stabbing, the defendant testified that her brother James grabbed her arm and tried to prevent her from touching Pamela. The defendant further testified that she struggled to loosen her brother’s grip and, as she pulled free, the knife “jumped,” causing the fatal wound.

Under General Statutes § 53a-55 (a) (3), a person is guilty of manslaughter if she “recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.” Given the defendant’s claim of accident, the court’s failure to charge the jury on general intent could possibly have misled the jury only if we view the conduct which created the grave risk of death as limited to the act of stabbing. This is not the case. All of the defendant’s actions—picking up the knife, grabbing Pamela and slapping her with the knife—created such a risk. It is this whole course of conduct and not only the stabbing that created the risk which caused the death. The defendant never presented any testimony to support a claim that she did not intend to engage in this course of conduct. In fact, the defendant testified that she picked up the kitchen knife and approached her sister intending to use the knife to scare her. She also testified that she grabbed Pamela while holding the knife and slapped her twice in the face with the flat part of the knife.

In reviewing a claim of error in a jury charge “[w]e must examine the issue or issues before the jury, including what was undisputed, and examine the charge ‘in view of the factual posture of the case.’ ” Torrence I, supra, 705, quoting State v. Kurvin, supra, 569. Since the intentional nature of the course of conduct which culminated in the death of Pamela Alston was never contested, it is not reasonably possible that the jury was misled by the court’s failure to charge that the defendant must have intended to do the proscribed act.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-55 (a) provides in pertinent part: “A person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       The court instructed the jury, in pertinent part, as follows: “That section of the Connecticut General Statutes in so far as is pertinent to this case, reads as follows: ‘A person is guilty of manslaughter in the first degree when, under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person.’
      “So, in order to find the defendant guilty under this statute, you must find that the State has proven beyond a reasonable doubt first that the accused, Connie [Alston’s] conduct evinced an extreme indifference to human life; second, that the accused’s conduct created a grave risk of death to another person, in this case, Pamela Alston; third, that the accused, Connie [Alston], in fact caused the death of Pamela Alston; and fourth, that the death of Pamela Alston was caused by the reckless conduct of the accused, Connie [Alston].
      “There is no element of any specific intent involved in this statute. The gist of the charge is recklessness. It is not necessary for the State, the prosecution, to prove that the accused intended to kill or hurt her sister with a knife. It is not necessary for the State to prove that she intended to stab Pamela at all.
      “The actual stabbing could have been inadvertent. It could have been intentional. You were aware there were two versions of this incident: One by the witness in the window which would indicate that the stabbing was deliberate and one told by the defendant and her family that it was inadvertent. The question for you to determine under either version is did the accused, under circumstances evincing an extreme indifference to human life, recklessly engage in conduct which would create a grave risk of death to another person, in this case, Pamela Alston; and did that reckless conduct cause the death of Pamela Alston.”

       Recklessly is defined in General Statutes § 53a-3 (13) as follows: “A person acts ‘recklessly’ with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”

       The court’s instruction in this case preceded the Supreme Court’s decision in State v. Shine, 193 Conn. 632, 479 A.2d 218 (1984). It is Shine which established that to be guilty of violating General Statutes § 53a-55 (a) (3), a person must have the general intent to engage in the proscribed conduct.


author: Spallone, J.

text:
    Souper Spud, Inc. v. Aetna Casualty & Surety Company
    (3177)
    Dupont, C. J., Hull and Spallone, Js.
    Argued October 3
    decision released December 10, 1985

      Bernard, Green, with whom, on the brief, was Joel Z. Green, for the appellant (plaintiff).

      Arnold J. Bai, with whom, on the brief, was Garie J. Mulcahey, for the appellee (defendant).
   Spallone, J.

The plaintiff has appealed from a judgment rendered for the defendant in accordance with a directed verdict as to one portion of the plaintiffs revised complaint, and from a judgment rendered following a jury verdict as to the remainder of the revised complaint.

Between November 3 and November 4,1981, a restaurant owned and operated by the plaintiff was virtually destroyed by fire. The plaintiff sought to recover on a multiperil insurance policy issued by the defendant which covered losses resulting from fire or other casualties. The defendant refused to pay the plaintiff, claiming, among other things, that the plaintiff and its agents misrepresented material facts regarding the loss and that such loss was caused, directly or indirectly, by the actions of one or more of the plaintiffs agents.

The plaintiffs first claim of error is that the trial court should not have overruled the plaintiff’s objection to the defendant’s request to revise the plaintiff’s amended complaint.

The amended complaint consisted of one count which contained claims based upon breach of contract and bad faith business conduct on the part of the defendant. The defendant requested that the plaintiff revise its amended complaint by separating the breach of contract claim and the tort claim into two counts. The plaintiff’s objection to the revision was that both claims arose out of a single occurrence and did not necessitate two counts. Pursuant to the trial court’s action, however, the plaintiff revised its amended complaint.

The dispositive question raised by this claim of error is whether the plaintiff should have failed to revise and allowed judgment to be rendered against it in order to preserve the claim for appeal.

Any party may request the separation of causes of action which, although properly united in one complaint, are improperly combined in one count. Practice Book § 147 (3). If the trial court overrules an objection to such a request, the objecting party is allowed fifteen days within which to file a substitute pleading complying with the court’s order. Practice Book § 149. By filing a substitute pleading, the plaintiff escapes an adverse judgment on the original pleading, and also abandons any claim based upon the original pleading. See Royce v. Westport, 183 Conn. 177, 179, 439 A.2d 298 (1981); Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, 554, 227 A.2d 418 (1967).

Where the objecting party fails to file a substitute pleading, a default judgment or judgment of nonsuit may enter; Practice Book § 363; Rodriguez v. Mallory Battery Co., 188 Conn. 145, 147-48, 448 A.2d 829 (1982); after which the objecting party may seek appellate review of the court’s ruling. See, e.g., Burgess v. Vanguard Ins. Co., 192 Conn. 124, 124-25, 470 A.2d 244 (1984); Rodriguez v. Mallory Battery Co., supra, 149-51; Purdy v. Watts, 91 Conn. 214, 218, 99 A. 496 (1916). Requiring the objecting party to elect to follow this procedure prevents the unnecessary prolongation of litigation and promotes the efficient use of judicial resources. See Royce v. Westport, supra. We conclude, therefore, that the plaintiff, by electing to replead in accordance with the court’s ruling on the defendant’s request to revise, waived its right to claim error in such ruling.

The plaintiff’s second claim is that the trial court erred in allowing the deposition of a defense witness into evidence, without a sufficient factual foundation to show that the witness was unavailable. At trial, the defendant sought to introduce into evidence the deposition of Susan Fowler, who was employed as a waitress at the plaintiff’s restaurant at the time of the fire. The deposition was taken by the defendant in North Carolina several months prior to the trial. Fowler testified in the deposition that she was then a resident of Virginia although she refused to divulge her exact address. Counsel for the plaintiff was present at the deposition and was afforded full opportunity for cross-examination.

The plaintiff’s claim of error rests on its interpretation of Practice Book § 248 (1) (d). This provision provides, in pertinent part, that “[t]he deposition of a witness . . . may be used by any party for any purpose if the court finds . . . that the witness is at a greater distance than thirty miles from the place of trial or hearing, or is out of the state and will not return before the termination of the trial or hearing . . . .” The plaintiff argues that there was no evidence introduced from which the court could make a finding as to the admissibility of the deposition.

While arguing against the admissibility of the deposition, the plaintiff’s attorney represented to the court that he had information that the deponent was, at the time of trial, living in Bridgeport. He made no further offer in this regard, and possessed no means by which to locate her. After extensive argument by both parties, the trial court found that the witness was out of state and admitted the deposition into evidence. The plaintiffs attorney was present at the deposition and was afforded full opportunity to cross-examine the witness. Moreover, the court’s decision to admit the deposition did not preclude the plaintiff from objecting to the deposition or any part thereof on those grounds which would require the exclusion of the evidence if the witness testifed in court. Practice Book § 248 (2). Under these circumstances, we conclude that the court was justified in concluding from the deposition itself that the witness was out of state and in admitting the deposition into evidence.

The plaintiff’s third claim of error is that the trial court erred in granting the defendant’s motion for a directed verdict as to the tort claims of the plaintiff.

At the close of the plaintiff’s evidence, the court granted the defendant’s motion for a directed verdict as to the entire second count and specific paragraphs of the first count of the revised complaint leaving, in essence, the breach of contract claim to be decided by the jury.

Although not favored, a directed verdict is proper when the jury could not reasonably and legally reach any other conclusions than that embodied in the verdict as directed. Puro v. Henry, 188 Conn. 301, 303, 449 A.2d 176 (1982); Kegel v. McNeely, 2 Conn. App. 174, 177, 476 A.2d 641 (1984). On review, the court will consider all the evidence and reasonable inferences in the light most favorable to the plaintiff. Puro v. Henry, supra; Sestito v. Groton, 178 Conn. 520, 522, 423 A.2d 165 (1979); Kegel v. McNeely, supra.

A review of the relevant portions of the transcript reveals that, at the close of the plaintiffs evidence, the plaintiff had not produced any evidence in support of the allegations relating to the alleged tortious conduct of the defendant. The trial court has a duty not to submit any issue to the jury upon which the evidence would not support a finding. Batick v. Seymour, 186 Conn. 632, 641, 443 A.2d 471 (1982). Therefore, the trial court did not err in directing a verdict for the defendant on those allegations.

As its final claim of error, the plaintiff contends that the trial court erred in denying the plaintiff’s motion to set aside the verdict on its contractual allegations. Its claim is that there was no evidence to support a finding by the jury that arson, as alleged in the defendant’s special defenses, had occurred.

The trial court has broad discretion when ruling on a motion to set aside a verdict and its ruling will not be disturbed absent clear abuse of that discretion. Herb v. Kerr, 190 Conn. 136, 139, 459 A.2d 521 (1983); Tomczuk v. Alvarez, 184 Conn. 182, 185, 439 A.2d 935 (1981). Our review of a trial court’s refusal to set aside a verdict is limited. Frankovitch v. Burton, 185 Conn. 14, 15, 440 A.2d 254 (1981); Carrier v. Rodrigue, 3 Conn. App. 401, 402, 488 A.2d 846 (1985). The evidence will be given the construction most favorable in support of the verdict. Herb v. Kerr, supra, 140; Todd v. Malafronte, 3 Conn. App. 16, 23, 484 A.2d 463 (1984). “ ‘If, on the evidence, the jury could reasonably have decided as they did, we will not find error in the trial court’s acceptance of the verdict.’ ” Frankovitch v. Burton, supra, 15-16, quoting Kalleher v. Orr, 183 Conn. 125, 126, 438 A.2d 843 (1981); see Todd v. Malafronte, supra.

In its answer, the defendant, although admitting the contract of insurance, posed several special defenses relating to the nature and origin of the fire in question. These defenses mirrored certain exclusionary provisions contained in the insurance policy. Specifically, the policy excluded from coverage loss caused by, among other things, any fraudulent, dishonest or criminal act done by or at the instigation of any insured or agent of any insured. The defendant, in refusing to pay the plaintiff on the policy, claimed that the fire and subsequent loss sustained by the plaintiff resulted from arson involving, directly or indirectly, the plaintiff or its agents.

The burden of proving an exclusion to a risk otherwise generally insured against is on the insurer. O’Brien v. John Hancock Mutual Life Ins. Co., 143 Conn. 25, 29, 119 A.2d 329 (1955); Young v. American Fidelity Ins. Co., 2 Conn. App. 282, 286, 479 A.2d 244 (1984). Generally, in order to establish a prima facie case of arson for purposes of denying coverage under an insurance policy, the insurer must establish that the fire was incendiary, that the insured, its agents or officers had an opportunity to cause the fire, and that such individuals had a motive for setting the fire. Appleman, Insurance Law and Practice § 12682 (1980). These elements must be proved by a preponderance of the evidence, which evidence may be either direct or circumstantial. Id., §§ 12229, 12682.

From the circumstantial evidence presented, the jury reasonably could have concluded that the fire in question was incendiary in nature and that there was an opportunity for the insured, its officers or agents to cause the fire. There was also evidence from which the jury could have concluded that the plaintiff had a motive for arson. The evidence regarding motive may be summarized as follows: The plaintiffs restaurant operated at a loss during each of the five months it was in operation. At the time of the fire, the plaintiff was obligated to Connecticut National Bank on an outstanding debt of $175,000 plus accrued interest. The plaintiff originally borrowed $150,000 but increased it by $25,000 because of a shortage of cash. The entire amount of the obligation was secured by the fixtures, equipment, accounts receivable, future earnings and profits of the restaurant as well as any proceeds from the sale of such collateral. The limit under the liability policy written by the defendant was $175,000.

The trial court, therefore, did not err in its denial of the plaintiffs motion to set aside the verdict because there was sufficient evidence to prove that coverage was excluded by the insurance contract.

There is no error.

In this opinion the other judges concurred.

       “A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief.” Bridgeport Hydraulic Co. v. Pearson, 139 Conn. 186, 197, 91 A.2d 778 (1952). Where separate and distinct causes of action are properly joined in one complaint, each should be contained in separate counts. Practice Book § 138; Burgess v. Vanguard Ins. Co., 192 Conn. 124, 125, 470 A.2d 244 (1984). Conversely, claims for relief which grow out of a single occurrence or transaction or those which are closely related may properly be set forth in a single count, notwithstanding the legal basis upon which the claims are predicated. Burgess v. Vanguard Ins. Co., supra, 126, citing Veits v. Hartford, 134 Conn. 428, 438-39, 58 A.2d 389 (1948).


author: Borden, J.

text:
    State of Connecticut v. Joseph Edwards
    (3169)
    Dupont, C. J., Borden and Spallone, Js.
    Argued November 6
    decision released December 10, 1985

      Donald Dakers, public defender, for the appellant (defendant).

      Lois Tanzer, special assistant state’s attorney, with whom, on the brief, were Arnold Markle, state’s attorney, and Mary Galvin and JohnM. Massameno, assistant state’s attorneys, for the appellee (state).
   Borden, J.

After a trial to the court, the defendant was convicted of attempted sexual assault in the first degree, in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70, and of unlawful restraint in the first degree, in violation of General Statutes § 53a-95. He appeals, claiming (1) that the court erred in denying his motion to dismiss the information, which was based on the fact that he was arrested without a warrant in his residence, and (2) that his conviction of both offenses violates his double jeopardy rights. We find no error.

In the midafternoon of September 22, 1983, the defendant, age sixteen, was restraining and attempting to sexually assault the victim near her automobile, but fled when a witness arrived who was his former high school gym teacher and who knew his name. Two police officers were called to the scene. They spoke to the victim and the witness, and obtained the defendant’s address from the school. The officers proceeded to the defendant’s apartment, arriving there approximately one hour after the attempted assault and within a very short time after speaking to the victim and witness. After knocking on the door, they identified themselves as police officers to the defendant’s mother, who had opened the door. They asked if they could enter and talk to her about her son. She permitted them to enter. They asked her if her son was home. She called him from a back room. They then told her they were investigating an attack on a woman and arrested the defendant.

The state’s original information was filed in geographical area number six on September 23,1983. Subsequently, the case was transferred to criminal Part A of the judicial district of New Haven. On September 30, 1983, the defendant filed a motion to dismiss the information, asserting as the sole legal basis of the motion that the warrantless arrest was without probable cause. On October 4,1983, the defendant pleaded not guilty. On December 5,1983, the state filed a substituted information, to which the defendant pleaded not guilty on December 15, 1983.

On February 8,1984, on the eve of trial, the defendant filed a second motion to dismiss which, for the first time, raised the claim on which he now relies, namely, that his warrantless arrest in his residence was, absent exigent circumstances, in violation of his federal and state constitutional rights to be free from unreasonable seizure. The state objected on the ground, inter alia, that the motion was untimely. The court reserved decision on the timeliness aspect of the motion and, after a hearing on the motion, denied it on its merits.

We need not reach the substance of the defendant’s claim on appeal that his warrantless arrest in his residence deprived the court of jurisdiction over his person. We agree with the state’s argument, made both in the trial court and in this court, that the defendant’s motion to dismiss, filed on February 8, 1984, was untimely and that, therefore, “he waived any objection he may have had to the trial court’s jurisdiction over his person.” State v. Baez, 194 Conn. 612, 616, 484 A.2d 236 (1984); State v. Vincent, 194 Conn. 198, 203-204, 479 A.2d 237 (1984). Whether we view the date of his plea as October 4,1983, when he pleaded not guilty to the original information, or as December 15, 1983, when he pleaded not guilty to the substituted information, he did not move to dismiss within ten days thereafter as required by Practice Book §§ 810 and 811, and thus waived his claim. State v. Vincent, supra, 202.

There is no indication here that the court found good cause to extend the ten day rule pursuant to Practice Book § 811. Nor does the fact that the trial court ruled on the merits of the defendant’s motion mean that it found good cause for an extension of the ten day rule. See State v. Vincent, supra. The defendant does not claim that he was unaware of the ground for his motion when he entered his pleas, and he does not present any other mitigating factors to excuse his untimeliness. State v. Baez, supra. Similarly, we reject his argument that his motion of February 8,1984, on which the court acted, was somehow just a continuation of his motion of September 30, 1983, on which the court did not act and which he formally withdrew on February 9,1984. As the defendant stated in the trial court when he withdrew the first motion, the two motions raised different issues.

The defendant’s second claim on appeal is that conviction of both attempted sexual assault in the first degree; General Statutes § 53a-49 (a) (2) and 53a-70; and unlawful restraint in the first degree; General Statutes § 53a-95; violates double jeopardy principles. This claim is patently without merit. A simple comparison of the two statutes, set out in footnotes 2 and 3, makes it quite clear that “ ‘each [statutory] provision requires proof of a fact that the other does not.’ ” State v. Wright, 197 Conn. 588, 593, 500 A.2d 547 (1985), quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).

There is no error.

In this opinion the other judges concurred.

       That motion was never pressed by the defendant or acted on by the court, and was formally withdrawn by him on February 9, 1984. He does not now claim that his arrest was without probable cause.

       General Statutes § 53a-49 provides in pertinent part: “(a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”
      General Statutes § 53a-70 provides in pertinent part: “(a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person . . . .”

       General Statutes § 53a-95 (a) provides: “A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose the latter to a substantial risk of physical injury.” General Statutes § 53a-91 (1) provides: “ ‘Restrain’ means to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in a place where the restriction commences or in a place to which he has been moved, without consent. As used herein ‘without consent’ means, but is not limited to, (a) deception and (b) any means whatever, including acquiescence of the victim, if he is a child less than sixteen years old or an incompetent person and the parent, guardian or other person or institution having lawful control or custody of him has not acquiesced in the movement or confinement.”


text:
    Fred L. DeWitt, Jr. v. John Hancock Mutual Life Insurance Company
    (3158)
    Borden, Daly and Bieluch, Js.

      Argued October 10
    decision released December 10, 1985

      Joseph Dimyan, with whom, on the brief, was Robert Eberhard, for the appellant (plaintiff).

      Timothy G. Atwood, with whom, on the brief, was Suzanne E. Baldasare, for the appellee (defendant).
   Borden, J.

The plaintiff appeals from the trial court’s judgment upholding the defendant’s refusal to pay an accidental death benefit payable under a life insurance policy issued by the defendant. The only issue properly before us on appeal involves the meaning of the word “assault,” as used in a policy exclusion clause.

The insured died when his car collided with another car as he was being chased at high speed by the police. The defendant paid the basic death benefit of $3822 but refused to pay the additional sum of $7644, the accidental death benefit. The term “accidental death” is defined in the policy as “death resulting directly and solely from [inter alia] [a]n accidental injury visible on the surface of the body or disclosed by autopsy . . . .” The pertinent exclusion clause states that “[n]o benefit will be payable under the ‘Accidental Death Benefit’ provision if the Insured’s death results, directly or indirectly, or wholly or partially, from: . . . [participation in an assault or felony.” There is no definition of assault or felony in the policy.

Upon the defendant’s refusal to pay the accidental death benefit, the plaintiff initiated this action. As special defenses, the defendant alleged (l)that the insured’s death was not accidental, and (2) that even if the death were accidental, the defendant is not liable pursuant to the exclusion clause because the insured’s death was caused by his participation in an assault or felony. The trial court found that the fatal collision occurred on a clear night when the road was dry. During the chase, the car driven by the insured reached speeds from forty to eighty-five miles per hour, crossed over the center line four or five times and intermittently traveled without headlights. The insured was killed when his car crossed over the center line and collided with another car. The collision also injured the driver of the other car, a passenger in the insured’s car and the pursuing police officer, whose car was also involved in the crash.

The trial court concluded that the insured was not engaged in a felony because no one other than he sustained “serious physical injury” as defined in General Statutes § 53a-3 (4). Thus, the two arguably applicable felony statutes; General Statutes §§ 53a-59 (a) (3) and 53a-60 (a) (3); did not apply. *4The court also concluded, however, that the insured was participating in a criminal assault in the third degree, under General Statutes § 53a-61 (a) (3), because with criminal negligence he caused physical injury to other persons by means of a dangerous instrument, namely his car. Accordingly, the court rendered judgment for the defendant. The principal issue in this appeal is whether, by interpreting the meaning of “assault” in this exclusion clause as necessitating application of these criminal statutory standards, the trial court applied “[an] erroneous rule of law material to the case.” Griffith v. Security Ins. Co., 167 Conn. 450, 455, 356 A.2d 94 (1975).

“ ‘Under our law, the terms of an insurance policy are to be construed according to the general rules of contract construction.’ ” Griswold v. Union Labor Life Ins. Co., 186 Conn. 507, 512, 442 A.2d 920 (1982); Downey v. Downey, 1 Conn. App. 489, 493, 472 A.2d 1296 (1984). It is well established that where the terms of an insurance contract are clear and unambiguous, the court must construe the contract in accordance with that meaning. Weingarten v. Allstate Ins. Co., 169 Conn. 502, 509, 363 A.2d 1055 (1975); Downey v. Downey, supra. Courts must avoid any tendency to “torture” a word’s ordinary meaning to create ambiguity. Downey v. Downey, supra. “ ‘However, “[w]hen the words of an insurance contract are, without violence, susceptible of two interpretations, that which will sustain the claim and cover the loss must, in preference, be adopted.” Raffel v. Travelers Indemnity Co., 141 Conn. 389, 392, 106 A.2d 716 [1954]; see also 4 Williston, Contracts (3d. Ed.) § 621.’ ” Griswold v. Union Labor Life Ins. Co., supra, 513.

In approaching the problem of discerning and resolving ambiguity, it is useful to recognize that the origin of the problem lies, in large part, in the nature of words and the language they compose. As Justice Holmes wrote, “[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” Towne v. Eisner, 245 U.S. 418, 425, 38 S. Ct. 158, 62 L. Ed. 372 (1918). In addition, “[t]he English language, with its immense vocabulary, its paucity of inflections, its thousands of homonyms, its flexible grammar and loose syntax, offers endless danger of (or opportunity for) ambiguity.” 3 Corbin, Contracts (1971 Sup.) § 543A, quoting “A Dictionary of Contemporary American Usage.” We conclude that the term “assault” as it appears in this insurance contract is ambiguous, and we reach this conclusion without torturing its ordinary meaning.

As a term of art, “assault” may denote either a civil assault or a criminal assault. A civil assault is the intentional causing of imminent apprehension of harmful or offensive contact in another. 1 Restatement (Second), Torts § 21. A criminal assault involves, in general, either intentional, reckless or criminally negligent conduct causing serious physical injury or merely physical injury. See General Statutes §§ 53a-59 through 53a-61a. Further, interpreting the word “assault” in relation to those words which are syntactically connected with it in the policy, we discern at least three possible meanings: (1) emphasizing the strictly criminal meaning of the word felony, the phrase “assault or felony” may mean “criminal assault or felony”; (2) emphasizing the conjunction, “or,” and the criminal meaning of “felony,” the phrase may mean “civil assault or felony”; and (3) emphasizing the phrase “or felony,” the phrase “assault or felony” may be broadly interpreted as “civil or criminal assault or felony.” (Emphasis added.) The fact that the trial court may have correctly applied one of these meanings to the facts does not cure the underlying ambiguity in the interpretation of the words.

We adopt the view of the majority of jurisdictions which have interpreted the word, “assault,” in similar contexts. That view is that an “assault” by an insured must be more than a simple assault or more than a negligent infliction of harm; it must be the kind of serious conduct which would justify a victim in using deadly force in self-defense against the insured. See annot., “Construction and effect of provisions in life or accident insurance policies referring to ‘assault,’ ‘felony,’ ‘fighting,’ etc., by insured,” 86 A.L.R.2d 443, 445, § 3. We do so for several reasons.

First, this definition complies with the clearly established principles governing construction of ambiguous terms in insurance policies. Such terms must be interpreted to sustain the claim and cover the loss. Raffel v. Travelers Indemnity Co., supra. Ambiguous terms in such “adhesion contracts”; 1 Corbin, Contracts (1984 Sup.) § 534; are to be construed against the insurer, a principle which applies with equal force to exclusion clauses. See Smedley Co. v. Employers Mutual Life Ins. Co., 143 Conn. 510, 513, 123 A.2d 755 (1956). “[I]t is the duty of the insurance company seeking to limit the operation of its contract of insurance by special provisos or exceptions, to make such limitations in clear terms and not leave the insured in a condition to be misled.” Boon v. Aetna Ins. Co., 40 Conn. 575, 586 (1874).

Second, this definition builds upon the idea of an assault as an altercation, an idea which we believe to be consistent with a layperson’s understanding of the term. See, e.g., Webster, Third New International Dictionary. This conclusion also comports with the established principle that the terms in an insurance contract should be given a “common” meaning if that can sensibly be applied to the subject matter. Cf. Griffith v. Security Ins. Co., supra, 454 (common meaning of “household” as defined in Webster’s Dictionary not ambiguous).

Third, the emphasis in this definition upon the degree to which the person assaulted is justified in using force against the insured serves certain practical purposes. It shifts the focus of the trier’s attention away from the particular elements of a civil or criminal assault. Thus, instead of emphasizing the degree to which a deceased insured person possessed a particular mental state to commit a civil or criminal act, the focus is upon the degree to which the victim, a potentially available witness, was justified in retaliating. In addition, this emphasis upon the degree to which the victim was justified in responding with deadly force virtually eliminates the need for labeling the deceased’s conduct as either a civil or criminal assault, because the civil and criminal standards relative to the use of deadly force in self-defense are very much the same. Compare General Statutes § 53a-19 with 1 Restatement (Second), Torts § 65 (use of deadly force justified under either standard only when actor reasonably perceives himself to be threatened with such force as would cause death or great bodily harm).

Applying this definition of “assault,” we hold that the facts found by the trial court do not support the conclusion that the insured’s death was caused by his participation in an assault. There is nothing to suggest that any of the victims reasonably perceived himself to be threatened with great bodily harm by the defendant’s conduct in such a way that the victim would have been justified in using deadly force in self-defense. Thus, the insured’s conduct, negligent as it may have been, as a matter of law was not the kind of conduct which constituted an assault within the meaning of the exclusion clause.

There is error, the judgment is set aside and the case is remanded with direction to render judgment for the plaintiff.

“Dangerous instrument,” as defined in General Statutes § 53a-3 (7), “means any instrument, article or substance which ... is capable of causing death or serious physical injury, and includes a ‘vehicle’ as that term is defined in this section.”

Unlike the defendant insurance company in Johnson v. Metropolitan Life Ins. Co., 26 Conn. Sup. 398, 406, 225 A.2d 498 (1966), the defendant here has sustained its burden of proving the exception, namely, that a serious physical injury had been inflicted on another person by means of a “dangerous instrument” used by the insured.

       The named plaintiff, Fred L. DeWitt, was the father of the insured and was the beneficiary of the life insurance policy in question. He died subsequent to the initiation of these proceedings. His executrix, Mabel DeWitt, was substituted as the plaintiff. All references in this opinion to the plaintiff are to Mabel DeWitt as executrix.

       The defendant does not take issue with the trial court’s conclusion that the insured was not engaged in a felony at the time of his death. Although the defendant does argue in this appeal that the exclusion clause exempts it from liability because the insured’s death was not “accidental,” a careful reading of the trial court’s memorandum of decision indicates the court’s conclusion to the contrary. Because the defendant has not filed a preliminary statement of issues to preserve this adverse ruling as an alternate ground for affirming the judgment; Practice Book § 3012 (a); we decline to undertake a complete review of that ruling. See Huybrechts v. Huybrechts, 4 Conn. App. 319, 320 n.1, 494 A.2d 593 (1985). Having conducted a limited review of this claim to insure that no injustice was done to this appellee; cf. Barrett v. Central Vermont Railway, Inc., 2 Conn. App. 530, 536 n.5, 480 A.2d 589 (1984); we see no reason to disturb that conclusion.


author: Per Curiam.

text:
    Peter Borgwald v. Herman’s Pants Pockets, Inc.
    (3735)
    Dupont, C. J., Borden and Schaller, Js.
    Argued November 26
    decision released December 17, 1985

      Hugh I. Manke, with whom, on the brief, was David A. Reif for the appellant (plaintiff).

      Steven G. Mednick, with whom, on the brief, was Peter F. Culver, for the appellee (defendant).
   Per Curiam.

There is no error.


text:
    State of Connecticut v. Angel Lopez State of Connecticut v. Ruben Sariol
    (2187)
    (2188)
    Dupont, C. J., Hull and Borden, Js.
    Argued October 2
    decision released December 17, 1985

      Joseph G. Bruckmann, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellants (defendants).

      James M. Bernardi, assistant state’s attorney, for the appellee (state).
   Hull, J.

In this case, two defendants who were tried together appeal from their convictions arising out of the same factual background. Their cases were also combined on appeal. Each defendant was convicted, after a jury trial, of possession of burglar’s tools in violation of General Statutes § 53a-106, of burglary in the third degree in violation of General Statutes § 53a-103, of larceny in the sixth degree in violation of General Statutes § 53a-125b, and of conspiracy to commit burglary in violation of General Statutes § 53a-48.

Both defendants claim as error that the trial court improperly instructed the jury on intent, an essential element of each of the crimes charged. The defendant Lopez also claims as error (1) that the trial court denied his sixth amendment right to confrontation by restricting his cross-examination of one of the investigating officers, and (2) that the state failed to prove beyond a reasonable doubt two essential elements of the offense of possession of burglar’s tools. The defendant Sariol also asserts as error (1) that he was convicted of possession of burglar’s tools without sufficient evidence as to whether he had the intent to use, or knowledge that some person intended to use, a screwdriver in the commission of the burglary, and (2) that he was denied due process at sentencing because, in imposing sentence, the trial court erroneously assumed that the defendant was unwilling to admit his guilt in exchange for a proper degree of leniency in sentencing.

The undisputed facts and pertinent testimony before the jury follow. On March 2, 1983, at some time between 10:30 a.m. and 10:50 a.m., Officers Robert Studwell and Frank Tyska, and Sergeant John Suchy of the Norwalk police department responded to a call of a burglary in progress at Six Taylor Avenue. An anonymous female caller had reported two men entering through a rear window. Tyska and Suchy went to the rear of the building with a police dog while Stud-well covered the front door. When Tyska noticed a cut rear window screen and an open window, he yelled into the house that the dog would be turned loose unless everyone came out. Tyska then heard footsteps traveling away from him while Studwell heard footsteps traveling toward him. The defendants ran out the front door where Studwell placed them in custody at gunpoint. A search of Sariol at the scene by Studwell produced a watch crystal and a screwdriver. A search at headquarters produced a watch from Sariol and earrings from Lopez. Studwell testified that the search of Lopez had been conducted by Tyska and Tyska testified that it had been conducted by Studwell.

The earrings and watch were identified as belonging to Jacob Kozar and Debra Wagner who resided at Six Taylor Avenue on the date of the burglary. The items had been removed from one of the bedrooms. Kozar and Wagner did not give the defendants permission to enter their house and neither had ever met either of the defendants. The screwdriver found on Sariol was admitted into evidence. It did not belong to Jacob Kozar or Debra Wagner. Suchy testified that after the apprehension of the defendants he observed the point of entry and the cut screen. He testified that his investigation of prior burglaries indicated the use of screwdrivers in some of them. He also testified that the screwdriver was used to cut the screen and that in his opinion it was a burglar tool.

The defendant Lopez testified as follows. Sometime before March 2,1983, he had gone to Six Taylor Avenue to collect $50 which Kozar owed him for a television set Lopez had sold him several months earlier. No one was at home on this first visit. On March 2, 1983, he returned with Sariol. He asked Sariol to go to the rear of the building to notify him if Kozar attempted to leave through the back door. He entered the open front porch door and knocked on the inner front door and waited for five minutes with no response. Sariol then returned to the front door. The police arrived and arrested both of them, searching both men but finding nothing. Lopez was not aware that Sariol had a screwdriver. He had never seen either the watch or the earrings before. He did not enter the inner front door and did not enter the house through any window.

Sariol’s testimony was consistent with that of Lopez. Both he and Lopez were on the front porch when the police arrived. Sariol never entered the house. Lopez never had the screwdriver, the earrings or the watch in his possession. No earrings were taken from Lopez.

I

As to Both Defendants: Whether the Court Improperly Instructed the Jury on Intent

Both defendants claim error in the court’s instructions to the jury on the intent element of the crimes charged against them. Since neither defendant requested an instruction on intent, or excepted to the charge, we can consider this claimed error only under the second prong of the Evans bypass rule; State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973); that is, to determine if the defendants have clearly been deprived of a fundamental constitutional right and a fair trial. We will not unnecessarily fatten this opinion with the well-known criteria governing the application of this test. The principles are well summed up in Evans, supra, and most recently refined in State v. Torrence, 196 Conn. 430, 435, 493 A.2d 865 (1985): “Once it has been established that the record adequately supports a claim that a defendant has clearly been deprived of a fundamental constitutional right and a fair trial; State v. Evans, supra, 70; the merits of the claim must be determined.” (Emphasis added.) Review of those merits involves the inquiry, not whether the ruling or instruction at issue is erroneous, but whether it violated some fundamental constitutional right of the defendant. State v. Torrence, supra.

Thus, our Evans inquiry in this case has three prongs: (1) whether the record supports the defendant’s claim that the charge raises a question of fundamental constitutional dimension; (2) if so, whether there was error; and (3) if there was error, whether it requires reversal. Id. In cases involving claimed error in the judge’s charge to the jury, the ultimate issue is whether it was reasonably possible that the jury was misled. State v. Kurvin, 186 Conn. 555, 558, 442 A.2d 1327 (1982).

The defendants’ claim is that the court misled the jury by equating knowledge with specific intent. Such a claim raises a sufficient constitutional issue to afford an Evans review; State v. Kurvin, supra, 558; and our review of the record indicates adequate support for the claim. Accordingly, we now consider the merits of the claim.

During its charge to the jury, the court did not read the statutory definition of intent. The defendants complain that, in its general discussion of intent, the court used the phrase “purpose, intention or knowledge” five times, and also used the phrase “certain purpose or intention or certain knowledge.” During its discussion of the essential elements of the crime of conspiracy, the court four times used the phrase, “purpose, intention or knowledge,” once used the phrase, “certain purpose or intention or certain knowledge,” and once used the phrase, “purpose and intention or knowledge.” During the charge on the elements of larceny, the court once used the phrase, “unlawful purpose or intention.”

Each of the crimes of which the defendants were convicted contained the essential element of a specific intent. The words “intent” and “knowledge,” obviously describe different mental states. See General Statutes §§ 53a-3 (11) and (12). Thus, the defendants claim, it is reasonably possible that the jury was misled into believing that a specific “intent” or “purpose” was not necessarily required for a conviction of any of the offenses charged as long as the defendants possessed “knowledge.”

A careful analysis of the relevant section of the charge reveals that the defendants overstate the case. Their claim of error represents the kind of microscopic examination of the charge discountenanced by our Supreme Court in State v. Mastropetre, 175 Conn. 512, 524, 400 A.2d 276 (1978).

Before submitting the state’s evidence to the jury, the court distinguished between “intent” and “knowledge,” when it defined the mens rea element of the crime of possession of burglar’s tools which is premised upon two alternative mental states: intent of the accused, or knowledge of the intent of another. The court, in its charge, repeatedly and accurately stated the intent required for each separate crime involved.

The plain and ordinary meaning of the word “intentionally” is so obvious that it is not error for the trial court to refuse to instruct the jury on its statutory definition. State v. Maresca, 173 Conn. 450, 460-61, 377 A.2d 1330 (1977). Where a trial court, in describing an essential element of an offense, uses language synonymous with the statutory definition of that element, the failure to read the statutory definition will not render the charge constitutionally defective. State v. Mason, 186 Conn. 574, 587, 442 A.2d 1335 (1982). The test is what “a reasonable juror hearing this instruction within the context of the entire charge would naturally assume . . . . ” State v. Boulware, 183 Conn. 444, 447-48, 441 A.2d 1 (1981).

The commingling of the words “purpose” and “intent” has been found not misleading in State v. Mason, supra. In Mason, the court’s instructions were more closely in line with the statutory definition of intent than in this case. Nevertheless, in view of the charge as a whole and the court’s frequent reiteration of the specific intent required for the various crimes, we conclude that, as in Mason, the use of these terms simultaneously and synonymously could not possibly have misled the jury.

Thus, the defendants’ argument boils down to a claim that the addition of the word “knowledge,” as described above, constituted error. It is clear that the twelve references to intent, purpose or knowledge, or close approximations of this phrase, occurred entirely in the context of a general discussion about circumstantial evidence relating to intent. It was only thereafter that the court gave its specific description of each offense with its necessary mental state. The court clearly added the word knowledge in this area of the charge because it is an element of the crime of possession of burglar’s tools.

The defendants assert that there was a spillover from the words used in the general discussion of circumstantial evidence relating to intent, which affected the charge on the necessary intent for the crimes involved. In the context of the factual issues raised at the trial, we conclude that this claim is based on mere speculation. There is no reasonable possibility that the jury was misled by the charge on intent.

II

As to Both Defendants: The Sufficiency of the Evidence of Possession of Burglar’s Tools

The defendants claim that there was insufficient evidence to prove them guilty beyond a reasonable doubt of possession of burglar’s tools. It was incumbent upon the state to prove the following essential elements contained in General Statutes § 53a-106 (a): (1) that the screwdriver found in Sariol’s physical possession was included in the category of “any tool, instrument or other thing adapted, designed or commonly used for advancing or facilitating offenses involving unlawful entry into premises”; (2) that the particular defendant actually had possession of the screwdriver; and (3) that any possession of the screwdriver by the defendant occurred “under circumstances manifesting an intent to use or knowledge that some person intended] to use the same in the commission of an offense [involving unlawful entry into premises].”

The issue, in reviewing the sufficiency of the evidence, is whether the jury could reasonably have concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt. State v. Stankowski, 184 Conn. 121, 126, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981). The evidence presented at the trial must be given a construction most favorable to sustaining the jury’s verdict. State v. Stankowski, supra. In a jury trial, the credibility of witnesses and the weight to be given testimony is for the jury to determine. State v. Gaynor, 182 Conn. 501, 505, 438 A.2d 749 (1980).

Both defendants concede that there was sufficient evidence to prove that the screwdriver fell within the statutory description of items qualifying as burglar’s tools. Lopez claims, however, that the evidence was insufficient to satisfy the second element, possession of this screwdriver, as to him. Possession can be either actual or constructive. State v. Ferrone, 97 Conn. 258, 116 A. 336 (1922); State v. Gonski, 155 Conn. 463, 232 A.2d 483 (1967); annot., 33 A.L.R.3d 788, § 7 (b) and (c). “The state was not required to prove that the defendant himself had actual physical possession of any or all of the articles. If it was established that any of the [defendants] had dominion and control over the articles and if [the defendants] were acting, at the time, pursuant to a common purpose, then all would have possession of the articles. State v. Ferrone, 97 Conn. 258, 262, 116 A. 336.” State v. Gonski, supra, 467. The evidence in this case was more than sufficient to sustain an inference that Lopez had constructive possession of the screwdriver.

Sariol does not contest the sufficiency of the evidence as to the second element of the crime. Both defendants, however, challenge the sufficiency of the evidence as to the third element, the intent factor.

There was evidence from Suchy, Tyska and Kozar that the screen had been cut, although there was no direct evidence that the screwdriver had been used for this purpose. It defies common sense to claim that the jury could not reasonably infer, under the circumstances of this case, that the defendants had the necessary intent that the screwdriver be used in the commission of the crimes.

The case of Commonwealth v. Jones, 355 Mass. 170, 243 N.E.2d 172 (1969), is very similar to this case. There, police officers responding to a call saw two defendants coming from the front door of a house. The police overtook one of the defendants and a search of him revealed a pair of gloves in a side pocket. A search of the codefendant revealed a pair of gloves, a screwdriver and a kitchen knife. When the owner returned to the house shortly thereafter, he found all of the lights on in the front hall and in the kitchen, and found a door into the kitchen opened and unlocked. A pane of glass in the kitchen door was broken. There were no jimmy marks found at the house to indicate that the knife or the screwdriver had been used. Everything in the house was just as the owner had left it. Nothing was missing.

Both defendants contended that the evidence did not warrant their conviction for possession of burglar’s tools with intent to use them. The Supreme Judicial Court of Massachusetts, noting that the tools were found together in the constructive possession of the defendants at the scene of a burglary, concluded that the intent to use the tools to break and enter could reasonably be inferred. “That there was no evidence that the tools were in fact so used does not bar the inference.” Commonwealth v. Jones, supra, 177.

We find no error as to the defendants’ conviction of possession of burglar’s tools.

Ill

As to the Defendant Lopez: Whether He Was Denied His Sixth Amendment Right to Confrontation by the Court’s Restriction of His Cross-examination of Officer Studwell

Lopez claims that the court unduly restricted cross-examination when it sustained objections by the state on the basis of repetitiveness. This type of claim usually involves a two-pronged analysis: whether the constitutional standard has been met, and, if so, whether the court abused its discretion. State v. Cunningham, 3 Conn. App. 353, 356, 488 A.2d 834 (1985). The court’s discretion in curtailing cross-examination “ ‘comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment.’ ” State v. Asherman, 193 Conn. 695, 718, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). Lopez seeks review under Evans since he did not except to the court’s rulings. We conclude, however, that the record does not adequately support a claim of a violation of Lopez’s right of confrontation and, therefore, decline to consider the merits of his claim.

The objections involved here were repeatedly sustained when Studwell was questioned concerning the search of Lopez at the police station. On direct examination, Studwell testified that the earrings were taken from Lopez’s pocket during a search at the police station. On cross-examination, he again stated that the earrings were found in Lopez’s pocket. He added that Tyska did the search and that Tyska would have to answer as to the pocket in which he found the earrings. Defense counsel thereafter repeatedly asked Studwell, in different ways, the same question: In which pocket were the earrings found? Studwell had made it clear that he did not see which pocket produced the earrings. The trial court sustained the state’s objections on the ground of repetitiveness.

We have carefully reviewed the transcript involved and conclude that Lopez is attempting to make an Evans mountain out of an evidential molehill. The court’s discretionary rulings simply do not support Lopez’s constitutional claim.

IV

As to Defendant Sariol: Claimed Error in Sentencing

At the sentencing hearing, the prosecutor told the court that Lopez and Sariol “chose to go before trial.” Sariol’s counsel told the court that before trial the state offered to recommend three years for Sariol in exchange for a guilty plea, but that this offer was contingent on Lopez also accepting a separate offer to him. Counsel claimed that Sariol had been willing to accept the state’s offer but that Lopez would not. Although the record does not indicate it, the state conceded at oral argument in this court that it made joint conditional offers to both. Defense counsel asked the court to take into consideration the fact that Sariol had wanted to accept the state’s offer. The court declined to do so, stating “[cjertainly a defendant, if he decides to enter a plea and avoid a trial, I think he is entitled to some consideration, and this is not that particular case here.”

Sariol never pleaded guilty but, on the contrary, affirmatively claimed innocence at the trial. Upon his conviction, the court sentenced him to a total effective sentence of six years, one year less than Lopez. He claims that the court violated his due process rights by not limiting his sentence to the three years which he was willing to accept before trial. We disagree.

Extending a proper degree of leniency in return for guilty pleas is a permissible practice. Corbitt v. New Jersey, 439 U.S. 212, 224, 99 S. Ct. 492, 58 L. Ed. 2d 466 (1978). A guilty person who has not pleaded guilty is not deserving of such leniency because he has “not demonstrated those attributes on which leniency is based.” Id. “The court exercises wide discretion in the sources and types of evidence which it may consider.” State v. Huey, 1 Conn. App. 724, 734, 476 A.2d 613, cert. granted, 193 Conn. 805, 477 A.2d 659 (1984). An appellate court will not review the proper exercise of a trial court’s discretion to fix a sentence which is within the statutory limits of the crime for which the defendant is being sentenced. State v. Nardini, 187 Conn. 109, 119, 445 A.2d 304 (1982).

We note that Sariol does not claim that he was somehow precluded from pleading guilty to the charges against him. Of course, he could have done that any time and gained whatever leniency was due him. His claim is solely that he is entitled, as a matter of due process, to the effective sentence which would have been recommended by the state had both he and Lopez accepted the state’s joint offer. The fatal flaw in this claim is that it assumes that the court would have accepted the state’s recommendation. There is nothing in this record to support that assumption.

Furthermore, the proper time for Sariol to have complained that he was deprived of his due process rights was when that alleged deprivation occurred, namely when he was required to go to trial despite his claimed willingness to plead guilty in accordance with the contingent offer. Had Sariol done so, a proper record of precisely what the offer was, including the contingencies and including whether the court would be inclined to approve the recommendation, could have been made. Moreover, the court could then have assessed the impact of the state’s asserted interest in dispensing of both cases without the need for a trial.

Instead, Sariol chose to take his chances on a trial and raise his claim at post-trial sentencing. Thus, he seeks both the benefit of a plea bargain and the chance of acquittal at trial. We do not believe that due process affords him the luxury of such a dual selection. Under the circumstances, he must be deemed to have waived any due process claim by going to trial without having complained earlier.

There is no error in either case.

In this opinion the other judges concurred.

       The pertinent parts of the relevant statutes provide: “[General Statutes] Sec. 53a-106. manufacturing or possession of burglar’s tools .... (a) A person is guilty of manufacturing or possession of burglar’s tools when he manufactures or has in his possession any tool, instrument or other thing adapted, designed or commonly used for advancing or facilitating offenses involving unlawful entry into premises, or offenses involving forcible breaking of safes or other containers or depositories of property, under circumstances manifesting an intent to use or knowledge that some person intends to use the same in the commission of an offense of such character.”
      “[General Statutes] Sec. 53a-48. conspiracy. . . . (a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”
      “[General Statutes] Sec. 53a-103. burglary in the third degree . . . . (a) A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”
      “[General Statutes] Sec. 53a-119. larceny defined. A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. ...”
      “[General Statutes] Sec. 53a-125b. larceny in the sixth degree .... (a) A person is guilty of larceny in the sixth degree when he commits larceny as defined in section, 53a-119 and the value of the property or service is two hundred fifty dollars or less.”

       The record is far from clear that Sariol ever agreed to accept the contingent plea bargain. The strongest evidence of such acceptance is a statement by counsel that “I clearly remember at one point’in time where Mr. Sariol had resigned himself to accepting the plea bargain offer of three years.” (Emphasis added.)


author: Daly, J.

text:
    State of Connecticut v. Leona Renee McCulley
    (3567)
    Spallone, Daly and Bieluch, Js.
    Argued October 9
    decision released December 17, 1985

      Kathleen Eldergill, for the appellant (defendant).

      Steven H. Levy, special assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant was convicted by a jury of assault in the second degree in violation of General Statutes § 53a-60 and larceny in the fourth degree in violation of General Statutes § 53a-125. On appeal, the defendant, Leona Renee McCulley, claims (1) that the trial court erred in failing to grant a judgment of acquittal for the assault charge because there was insufficient evidence for the jury to find that the victim suffered serious physical injury, and (2) that she was deprived of effective assistance of counsel.

The jury could readily have found the following facts. On May 1, 1982, a male security guard working in Gimbel’s department store saw the defendant take a white blouse, remove a sensimatic device from it and place the blouse in her purse. The guard sought the assistance of the female security manager who responded. Both followed the defendant, who was with a female companion and a little girl, down the stairs to a restroom. The manager followed the defendant into the restroom while the guard remained outside. The manager observed the defendant inside a restroom stall unzip her handbag and pull out two blouses, one white and one purple, which she attempted to flush down the toilet. Each blouse was valued at $25. The manager confronted the defendant, identified herself as a member of the store’s security staff, and attempted to restrain the defendant from leaving the restroom. The manager called for the guard as the defendant, who was cursing and screaming, tried to push the manager from the door. The guard entered the restroom, grabbed the defendant and escorted her outside the ladies’ restroom. The defendant then began screaming, yelling and kicking her feet and commenced to hit the guard in the face with a felt belt. The defendant was taken to the security office, where she resisted an attempt to be handcuffed by grabbing a bookcase and attempting to topple it on the manager. The defendant then hit the manager in the face with her fist.

As a result of the altercation, the guard received tom muscles in his arm and was required to wear a sling for three or four days. He sustained no injuries from being hit with the belt. The manager was treated at the St. Joseph Hospital emergency room for injuries to her face. Three days later she began to experience severe earaches, dizzy spells, headaches and equilibrium problems. She sought medical assistance within a week of the episode and was administered an injection to reduce the facial swelling. She visited her physician approximately twelve times for treatment and continued to be treated four months thereafter for blockage in her inner ear, which she alleged occurred as a result of being punched in the face by the defendant.

The defendant claims that the trial court erred in refusing to grant her motion for a judgment of acquittal of the crime of assault in the second degree on the ground that the evidence presented was, as a matter of law, insufficient to establish that the security manager had sustained “serious physical injury” as required for conviction of that crime. General Statutes § 53a-60 provides in pertinent part that “[a] person is guilty of assault in the second degree when: (1) with intent to cause serious physical injury to another person, he causes such injury to such person or to a third person . . . .” General Statutes § 53a-3 (4) defines “serious physical injury” as a “physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ . . . .” On the other hand, “physical injury” is defined as merely “impairment of physical condition or pain . . . .” General Statutes § 53a-3 (3). “Impair,” according to Webster, Third New International Dictionary, means “to make worse; diminish in quantity, value, excellence or strength . . . do harm to . . . .”

Although it may be difficult to distinguish between a “serious physical injury” and a “physical injury,” such a distinction must be drawn here. A person can be found guilty of assault in the second degree under General Statutes § 53a-60 only if he causes serious physical injury to another person. State v. Rossier, 175 Conn. 204, 207, 397 A.2d 110 (1978). “Whether the physical injury sustained by the [security manager] was serious was a question of fact for the jury, assuming sufficient evidence had been introduced. Our task in reviewing the sufficiency of the evidence to support a jury verdict is to construe the evidence as favorably as possible with a view toward sustaining the verdict, and then to determine whether, based on such evidence, a jury could reasonably have reached its conclusion. State v. Jemtiniano, 172 Conn. 275, 281-82, 374 A.2d 209 (1977).” State v. Rossier, supra; see State v. Maltese, 189 Conn. 337, 344, 455 A.2d 1343 (1983).

Each essential element of the crime charged must be established by proof beyond a reasonable doubt. Although the jurors may draw reasonable, logical inferences from the facts proven, they may not resort to speculation and conjecture. State v. Morrill, 193 Conn. 602, 608, 478 A.2d 994 (1984); State v. Festo, 181 Conn. 254, 259, 435 A.2d 38 (1980); In re Juvenile Appeal (85-2), 3 Conn. App. 184, 193, 485 A.2d 1362 (1985). The general rule is that witnesses must state facts and not their individual opinions and conclusions. State v. Palozie, 165 Conn. 288, 297, 334 A.2d 468 (1973); Sydleman v. Beckwith, 43 Conn. 9, 11 (1875); Moody v. Pinto, 37 Conn. Sup. 786, 788, 436 A.2d 1099 (1981).

The facts construed most favorably toward sustaining the verdict indicate that the manager had no ear problems prior to the altercation with the defendant. Her symptoms developed immediately after the attack and persisted for the four months prior to trial. During the trial, she continued to undergo treatment for blockage to her inner ear, which she attributed to having been punched in the face by the defendant. The jury could reasonably infer that this problem was caused by the defendant’s assault and that the victim suffered a “serious impairment of health or serious loss or impairment of the function of any bodily organ.” General Statutes § 53a-3 (4).

The defendant’s claim that she had been deprived of effective assistance of counsel is without merit.

There is no error.

In this opinion the other judges concurred.

       Any claimed error concerning the larceny count was abandoned at the time of argument.

       The charge of assault in the second degree pertained to the attack on the manager while the assault in the third degree charge involved the guard. The latter charge resulted in a finding of not guilty.