author: Stoughton, J. Bieluch, J.,

text:
    State of Connecticut v. Stephen J. Martin
    (5815)
    Spall one, Bieluch and Stoughton, Js.
    Argued December 17, 1987—
    decision released June 28, 1988

      Carl J. Schiessl, with whom, on the brief, was John J. Carta, Jr., for the appellant (defendant).

      Susann E. Gill, assistant state’s attorney, with whom, on the brief, was Bernadette Conway, deputy assistant state’s attorney, for the appellee (state).
   Stoughton, J.

The defendant was convicted, after a trial to a jury of six, of operating a motor vehicle while under the influence of intoxicating liquor and of interfering with a police officer, in violation of General Statutes §§ 14-227a (a) and 53a-167a, respectively. He appeals from the judgment of conviction and assigns as error the following: (1) the trial court’s decision to admit evidence of the defendant’s refusal to submit to chemical blood testing in that he was not specifically informed that, owing to a previous conviction of operating under the influence, he faced automatic suspension of his license for one year, rather than six months, and its instruction that the jury might draw inferences from such refusal; (2) the trial court’s refusal to charge the jury on driving while impaired, General Statutes § 14-227a (b), as a lesser included offense of driving under the influence, General Statutes § 14-227a (a); (3) the trial court’s charge to the jury on the credibility of witnesses; and (4) the trial court’s allowing the state to inquire as to the nature of the defendant’s prior contact with the officer who pulled the defendant over on the night of his arrest. We find no error.

The jury reasonably could have found the following facts from the evidence adduced at trial. The defendant was traveling northbound on Route 149 in East Haddam at approximately 10 p.m. on August 31,1986. As he approached an intersection, he passed through police radar, which clocked the defendant’s vehicle at 62 miles per hour. The speed limit at that section of Route 149 was 30 miles per hour.

The defendant drove slightly beyond the intersection, then turned back and drove down the lane which intersected Route 149. The officers who had clocked the defendant’s vehicle followed him and signalled the defendant, with both headlights and strobe lights, to pull over. When the defendant, failed to stop after approximately a tenth of a mile, the officers turned on the siren. The defendant stopped gradually.

One of the officers approached the driver’s side of the car and requested the defendant’s license and registration. The defendant responded to this request by stating, “What for? I’m going home. Don’t bother me.” The defendant indicated that he was just one quarter of a mile from home and asked the officer to “give [him] a break.” The officer again requested his license and registration, whereupon the defendant refused and screamed profanities at the officer. When the defendant refused the officer’s third request for his license and registration, the officer asked him to step out of the car. The defendant told the officer to get away from his car and declared that he was going home. After noticing the defendant’s slurred speech, the strong odor of alcohol about him, and his vituperative demeanor, the officer concluded that the defendant was intoxicated and decided to arrest him for driving under the influence.

The officer opened the car door, shifted the car into park and turned the ignition off. He told the defendant that he was under arrest and attempted to put handcuffs on him. The defendant proceeded to wrap his arm around the steering wheel and began to fight with the officer. The officer who remained in the patrol car radioed for assistance while the other officer continued in his attempts to extricate the defendant from his car. Only when additional officers arrived were the police able to remove the defendant from the vehicle.

The defendant was placed in the back of a patrol car, where he was advised of his Miranda rights. A state trooper arrived on the scene and the defendant persisted in behaving in a belligerent manner, flailing and kicking at the officers and at the interior of the patrol car. Plastic cuffs were placed around the defendant’s legs to prevent him from injuring himself or others. On the basis of what the state trooper observed and what the other officers had told him, the trooper decided to arrest the defendant for interfering with an officer. Apart from the defendant’s obstreperous behavior, the state trooper also noted that the defendant had a very strong odor of alcohol, that his eyes were bloodshot and glassy, that his speech was slurred and that he exhibited wide mood swings. He described the defendant’s gait as “wavering” and “unsteady.”

At state police barracks, the defendant was read an “implied consent” form for the administration of a chemical blood alcohol test. The defendant requested, and was given, the opportunity to confer with his attorney before he decided whether to submit to such a test. After he spoke to his lawyer, he refused to take the test.

I

The Admission into Evidence of the Defendant’s Refusal to Submit to Chemical Testing

General Statutes § 14-227b (b) provides that evidence of a defendant’s refusal to submit to a blood, breath, or urine test will be admissible against him provided certain procedural safeguards are followed. The relevant portion of § 14-227b (b) in the present case is that portion which requires the police to inform a defendant that his or her refusal to take such a test will result in a suspension of the defendant’s license in accordance with the provisions of subsections (d), (e) or (f) of § 14-227b. The defendant’s contention is that evidence of his refusal ought to have been suppressed because the police did not specifically inform him that he faced an automatic license suspension of one year rather than six months, owing to his prior drunk driving conviction and his previous participation in a pretrial alcohol education program. We disagree.

The implied consent form which was read to the defendant informed him that his refusal to submit to the test would result in the immediate revocation of his license for twenty-four hours, and would also result in the suspension of his license for at least six months. It also apprised the defendant that such a refusal could be admissible against him. The defendant said he understood the warnings and, after conferring with his attorney, refused to submit to the test. We find that the defendant was adequately informed of the two major consequences of refusing to comply with our “implied consent” statute: (1) that a refusal may be admitted against him in a criminal prosecution; and (2) that his license to operate a motor vehicle would be suspended for at least six months.

The defendant, seizing upon the clause which states that an individual might lose his license “in accordance with the provisions of subsection (d), (e) or (f) [of § 14-227b],” contends that the police ought to have informed him that he faced suspension of his license for one year because of his previous violation. We decline to read the statute this way. To interpret General Statutes § 14-227b (b) in this manner would result in the requirement that a hypertechnical and burdensome warning be administered as a prerequisite to the admission of evidence of refusal. At the very least, such an interpretation would require an arresting officer to determine a defendant’s criminal record, ascertain the maximum potential suspension period and inform the defendant of the period of suspension he or she faces. Such precise warnings realistically cannot be expected of police officers in the course of making an arrest.

We cannot accept the argument that the legislature, by making reference to subsections (d), (e) and (f), intended that defendants be informed of the provisions found therein. In fact, those subsections deal largely with the procedures to be followed by the police and by the commissioner of motor vehicles subsequent to a license revocation. Moreover, prior to 1983, the police were expressly required to inform a defendant of the duration of the suspension faced. See Public Acts 1982, No. 82-408, § 4 (b). This provision was eliminated by Public Acts 1983, No. 83-534, which strongly indicates an intention to abandon the very requirement which the defendant argues exists. Clark v. Muzio, 40 Conn. Sup. 512, 517, 516 A.2d 160 (1986), aff’d, 14 Conn. App. 212, 540 A.2d 1063 (1988). The critical information to be given defendants under such implied consent statutes is the fact of suspension rather than its duration. Id. There was no error in admitting testimony concerning the defendant’s refusal to submit to such a test or in charging the jury as to what inferences might be drawn from sucia a refusal.

II

The Trial Court’s Refusal to Charge on Driving While Impaired as a Lesser Included Offense of Driving While Under the Influence

The defendant’s second claim of error fails because he did not submit an appropriate request to charge as required by Practice Book § 854 and State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). It is well established that a defendant is entitled to a lesser included offense instruction only if four requirements are satisfied: “(1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without first having committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense, but guilty of the lesser.” State v. Whistnant, supra.

A request to charge is not appropriate within the meaning of Whistnant unless it complies with Practice Book § 854 (formerly § 852). State v. McIntosh, 199 Conn. 155, 158, 506 A.2d 104 (1986).

Practice Book § 854 (requires that every request to charge be set forth in separately numbered paragraphs, “each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply.” The request to charge submitted by the defendant failed to provide the court with any factual basis for his request. State v. Ostroski, 201 Conn. 534, 558, 518 A.2d 915 (1986). Moreover, the defendant failed to provide any legal authority from any jurisdiction to support his argument that operating while impaired is a lesser included offense of operating while under the influence, apart from the citation to General Statutes § 14-227a (b) itself. For this reason alone, the defendant was not entitled to the requested instruction. State v. McIntosh, supra, 160-61.

The state has pressed the claim that the defendant has not complied with the first prong of the Whistnant test. Even had it not done so, however, this court has recently held, “[t]his duty [compliance with Practice Book § 852 and State v. Whistnant] is not optional, nor can it be waived by the state. The defendant must pro-' vide the trial court with the factual and legal basis for the charge before an appellate court can find error in the court’s refusal to give the charge as requested.” State v. Robinson, 14 Conn. App. 40, 45-46, 539 A.2d 606 (1988). The trial court did not err.

Ill

The Court’s Charge on the Credibility of Witnesses

The defendant’s third claim on appeal is that the trial court erred in its charge to the jury on the standard of proof required in the jury’s determination of the credibility of witnesses. Specifically, the defendant challenges that portion of the charge in which the court instructed the jury as follows: “The testimony of each [witness] is to be weighed for what it seems to you to be worth in the light of its character, the demeanor of the witness as it bears on credibility, the substance of the testimony and the probability or improbability that what the witness said is true.” (Emphasis added.) The defendant did not object or except to this portion of the charge, but maintains that this claim is reviewable under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), as a claimed deprivation of a constitutional right. We agree and review this claim because the fundamental constitutional right that the state prove the guilt of a defendant beyond a reasonable doubt is implicated. In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Miller, 202 Conn. 463, 489-90, 522 A.2d 249 (1987); State v. McDonough, 205 Conn. 352, 354, 533 A.2d 857 (1987), cert. denied, U.S. , 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988).

The defendant maintains that the effect of the court’s charge was to allow the jury to find facts using a standard of probability or improbability rather than a standard of proof beyond a reasonable doubt. He argues that since the outcome of the case rested on the credibility of the police officers as against the credibility of the defendant, the standard of proof to be applied in establishing a witness’ credibility was vital. He asserts that under the circumstances, “it was reasonably possible that the jury was misled by the instruction into misunderstanding an issue that has fundamental constitutional significance.” State v. Torrence, 196 Conn. 430, 436, 493 A.2d 865 (1985). We disagree.

We note at the outset that such instructions have received much criticism as “comparative credibility” charges which have the potential for diluting the state’s burden of proof. State v. Orsini, 187 Conn. 264, 276, 445 A.2d 887, cert. denied, 459 U.S. 861, 103 S. Ct. 136, 74 L. Ed. 2d 116 (1982). In such situations, the question to be resolved is whether there is any reasonable possibility that the charge as a whole could have misled the jury into applying a standard other than proof beyond a reasonable doubt. Id., 277. We have recently articulated a different framework for conducting inquiries into claimed federal constitutional instructional errors. Specifically, we ask whether “ ‘ “the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” ’ Rose v. Clark, 478 U.S. 570, 576, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986), quoting Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986).” State v. Coleman, 14 Conn. App. 657, 679, 544 A.2d 194 (1988).

The record indicates that the instructions, taken as a whole, could not reasonably have resulted in lessening the state’s burden of proof. The transcript of the instructions themselves is approximately eighteen pages long, and therein the court mentioned eight times that the state had the burden of proving each element of each charge beyond a reasonable doubt.

The court further instructed the jury on the presumption of innocence enjoyed by the accused and that the presumption applied to all of the elements necessary to constitute the offense charged. The jury was also informed that the defendant was in no way obliged to take the witness stand on his own behalf. Moreover, the court instructed the jury that testimony from police officers is to be given no special weight and that such testimony should be as carefully scrutinized as that of other witnesses. On these facts, the single disputed statement could not be regarded as diluting the state’s burden. There is no merit to this claim.

IV

The Trial Court’s Allowing the State to Inquire as to the Nature of the Defendant’s Prior Contact with Constable Milardo

The defendant’s final claim on appeal is that the trial court erred in admitting certain evidence from which the jury could infer that he had previously been arrested for operating under the influence. The defendant did not object to the state’s line of questioning nor did he except to the trial court’s ruling. Moreover, the rule pertaining to the admission of evidence of other crimes committed by defendants is a rule of evidence rather than one of constitutional dimension. State v. Smith, 198 Conn. 147, 156, 502 A.2d 874 (1985); State v. Rodriguez, 10 Conn. App. 357, 358, 522 A.2d 1250 (1987). The defendant also failed to brief the issue of the reviewability of this claim on appeal. We will not review this claim in light of the defendant’s failure to object below and his failure to brief the issue of review-ability here. We note, however, that the inquiry permitted by the court did not disclose to the jury the fact of the defendant’s prior arrest for driving while under the influence or any other offense. The court allowed the state to elicit testimony that the defendant’s prior contact with the officer who stopped him was on a nonsocial basis and was permitted as a means of responding to the suggestion created by the defendant’s testimony that his arrest was the result of animosity toward him or the reputation of the officer for brutality. On these facts, the inquiry did not undermine the defendant’s right to a fair trial.

There is no error.

In this opinion Spallone, J., concurred.

Bieluch, J.,

dissenting. I disagree with the conclusion of the majority that the trial court did not err in refusing to charge on driving while impaired as a lesser included offense of driving while under the influence of liquor. The sole basis for this conclusion was that the defendant’s request to charge failed to comply with the requirement of Practice Book § 854 that each proposition of law state “the citation of authority upon which it is based, and the evidence to which the proposition would apply.”

The defendant was arrested on August 31,1986, for operating while under the influence of intoxicating liquor, in violation of General Statutes § 14-227a (a), and for interfering with an officer, in violation of General Statutes § 53a-167a, on the basis of his motor vehicle operation, his physical condition and appearance, and his unruly and belligerent conduct. He refused to submit to a chemical test for alcohol after his arrest.

General Statutes § 14-227a (a) provides: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state ... (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.” Since there was no alcohol test taken in this case, the first specified manner of violation of this statute was the issue before the jury.

Subsection (b) of § 14-227a provides: “No person shall operate a motor vehicle on a public highway of this state . . . while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor. A person shall be deemed impaired when at the time of the alleged offense the ratio of alcohol in the blood of such person was more than seven-hundredths of one per cent of alcohol, by weight, but less than ten-hundredths of one per cent of alcohol, by weight.” In the absence of an alcohol test, the per se statutory violation is not relevant in this discussion.

On the basis of § 14-227a (b), the defendant submitted the following request to charge: “In addition to § 14-227a (a) which, in order to find the defendant guilty, requires proof beyond a reasonable doubt that the defendant was operating a motor vehicle while under the influence of intoxicating liquor, you are also permitted to consider the lesser included offense of operation while impaired. Section 14-227a (b) provides in part that ‘No person shall operate a motor vehicle on a public highway of this state . . . while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor.’ In order to find the defendant guilty under this section you need not find that the defendant was operating while under the influence of intoxicating liquor but only that his ability to operate such motor vehicle was impaired.”

Unlike the trial court, the majority opinion does not reach the merits of the defendant’s claim that in the absence of a blood alcohol test, driving a motor vehicle while impaired by the consumption of intoxicating liquor, in violation of § 14-227a (b), is a lesser included offense of operating a motor vehicle while under the influence of intoxicating liquor, in violation of § 14-227a (a). A recent review of the legislative history of § 14-227a (b); see State v. Gonzalez, 14 Conn. App. 216, 541 A.2d 115 (1988) (Bieluch, J., dissenting); led to my conclusion that in the absence of blood alcohol evidence, the operation of a motor vehicle by a person while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor; General Statutes § 14-227a (b); is a lesser included offense of operation under the influence of intoxicating liquor, General Statutes § 14-227a (a). State v. Gonzalez, supra, 224.

The majority opinion supports the erroneous refusal of the lower court to charge on the lesser included offense, not on the merits of the charge, but for the asserted procedural deficiency that the defendant failed to “provide the trial court with the factual and legal basis for the charge.” Practice Book § 854. This misconstrues the application and requirements of the procedural rule. “The ever increasing refinement of our law justifies the cooperation of counsel in stating requests for jury instructions, and this cooperation is mandated, at least to the extent of substantial compliance with Practice Book § 852 [now § 854].” State v. McIntosh, 199 Conn. 155, 160-61, 506 A.2d 104 (1986). The purpose of the rule is to allow the trial court to know the precise point to which the defendant wished to call attention. Id., 161.

The lesser included offense issue before the trial court turned on a clear question of law. The majority opinion misapplies the rule of Practice Book § 854 to the facts and issue in this case in holding: “The request to charge submitted by the defendant failed to provide the court with any factual basis for his request. State v. Ostroski, 201 Conn. 534, 558, 518 A.2d 915 (1986). Moreover, the defendant failed to provide any legal authority from any jurisdiction to support his argument that operating while impaired is a lesser included offense of operating while under the influence, apart from the citation to General Statutes § 14-227a (b) itself.” The record discloses that the issue before the court was one of law, and not of facts. The same evidence applied to both offenses. The only question presented by the defendant’s request to charge, and ruled on by the trial court, was one of law. The majority’s requirement that a request to charge be supported by “legal authority from any jurisdiction,” in addition to the statutory citation, is without foundation. Statutory authority alone is sufficient to support a request to charge; its weight is also greater than judicial authority for that purpose.

The trial court ruled on the defendant’s request to charge upon the completion of final arguments to the jury and in their absence. It recognized “the precise point to which the defendant wished to call attention”; State v. McIntosh, supra, 161; as one of law when it held: “[Sjince there was no chemical test, although I am familiar with the case about the lesser included charge that it is not automatically out, because there is no chemical test here, I do not feel that it is to be a part of this case, so I will not charge on that.” The trial court ruled on the defendant’s request to charge as a matter of law, and so should this court on the defendant’s appeal from that holding.

The trial court also erred when it instructed the jury on the offense of operation of a motor vehicle while under the influence of intoxicating liquor. This court on an appeal before it is not bound to consider a claim unless it was distinctly raised at the trial or arose subsequent thereto. It may, however, in the interest of justice notice plain error not brought to the attention of the trial court. Practice Book § 4185.

In defining the elements of the offense of driving under the influence of intoxicating liquor, the court included this instruction: “If intoxicating liquor has so far affected the nervous system and brain of the driver of a motor vehicle as to impair to an appreciable degree his ability to operate the car, as he would in the full possession of his faculties, then such a driver is under the influence of intoxicating liquor, within the meaning of tKe statute. ” (Emphasis added.) Such a charge is appropriate in the consideration of the offense of operating a motor vehicle while impaired, but constitutes prejudicial error when given to a jury for its deliberation on a prosecution for operating a motor vehicle while under the influence of intoxicating liquor.

Reviewing the entire charge, I would find that the commingling into the court’s charge on operation of a motor vehicle while under the influence of intoxicating liquor an instruction defining the offense of operation while impaired as proof that “such a driver is under the influence of intoxicating liquor, within the meaning of the statute,” was not, on the whole record here, harmless beyond a reasonable doubt. See Rose v. Clark, 478 U.S. 570, 576, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986); Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986); State v. Coleman, 14 Conn. App. 651, 679, 542 A.2d 752 (1988).

For these reasons, I would find error.

       The “implied consent form” which was read to the defendant provided as follows: “You’re under arrest for operating a motor vehicle while under the influence of intoxicating liquor, drugs, or both. Connecticut law states that you are deemed to have given your consent to a chemical analysis of your blood, breath, or urine. I request that you submit to such a test. If you refuse to submit to this test, the test will not be given. Such refusal will result in the immediate revocation of your operator’s license, or nonresident operating privilege for twenty-four hours, and will further result in the suspension of your license or nonresident operating privilege for at least six months. Also, if you refuse to submit to such test, your refusal is admissible against you in a criminal prosecution. Do you understand this? Will you submit to a chemical test or analysis?” (Emphasis added.)

       The defendant’s request to charge on this offense was as follows: “2. In addition to § 14-227a (a) which, in order to find the Defendant guilty, requires proof beyond a reasonable doubt that the Defendant was operating a motor vehicle while under the influence of intoxicating liquor, you are also permitted to consider the lesser included [offense] of operation while impaired. Section 14-227a (b) provides in part, that ‘No person shall operate a motor vehicle on a public highway of this State . . . while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor.’ In order to find the Defendant guilty under this section you need not find that the Defendant was operating while under the influence of intoxicating liquor but only that his ability to operate such motor vehicle was impaired.”

       In a recent case, State v. Gonzalez, 14 Conn. App. 216, 541 A.2d 115 (1988), we reviewed precisely the same issue the defendant now raises. The defendant therein did cite cases from other jurisdictions which supported his theory that “impairment” constituted a lesser included offense of operating while under the influence or operation while intoxicated, in addition to citing State v. Hancich, 200 Conn. 615, 620, 513 A.2d 638 (1986), in both his request to charge and in his amended request to charge. Moreover, the defendant’s requested instructions provided a coherent definition of “impairment” in relation to operating while under the influence. While the majority was not persuaded by his arguments, we found that his request to charge was sufficient to merit review. Here, the defendant’s request to charge is so fatally inadequate that we find that his claim does not merit review, particularly in light of our recent decision in State v. Robinson, 14 Conn. App. 40, 45-46, 539 A.2d 606 (1988). We do not suggest that a defendant must provide authority from other jurisdictions in a request to charge where no authority exists in Connecticut. He must attempt, however, to furnish the court with some legal theory, in light of the facts in a particular case, to justify a requested instruction.

       The court’s entire charge defining operation while under the influence of intoxicating liquor for a conviction under General Statutes § 14-227a (a) was as follows:
      “What does under the influence of intoxicating liquor mean, and you are finally going to get the legal definition. Driving while under the influence of intoxicating liquor or under the influence of liquor means that the driver has become so affected in his mental, physical, or nervous processes, that he lacks to an appreciable degree the ability to function properly in relation to the operation of his motor vehicle. All right.
      “Now, it is a matter of common knowledge that the susceptibility to intoxicating liquor varies in individuals who have imbibed. The law has not made it a crime for a person to drive his automobile after he has been drinking, nor has it specified the number of drinks which a man might take in order to produce that state, which is defined to be under the influence of intoxicating liquor, but it is a well known fact that intoxicating liquor has such a power of affecting the normal reactions and responses of the brain and body of the person that it is against public policy to allow any person to drive his automobile on a public highway when he is, in fact, under the influence of intoxicating liquor. When a person takes intoxicating liquor, the effect upon his driving an automobile may manifest itself in several ways; impaired judgment of speed or distance, lack of coordination, a sense of exhilaration, which induces recklessness, and other elements which common observation will suggest to you. The driving of an automobile when liquor has produced these effects in an individual is unlawful. It is not necessary that the accused be drunk, as the word is commonly understood. However, the expression, under the influence of intoxicating liquor, does cover not only all the well known and easily recognized conditions and degrees of intoxication, but also any abnormal mental or physical condition which is the result in indulging in intoxicating liquor, and which tends to deprive a person of that clearness of intellect, judgment, and control which he would otherwise possess.
      “If intoxicating liquor has so far affected the nervous system and brain of the driver of a motor vehicle as to impair to an appreciable degree his ability to operate the car, as he would in the full possession of his faculties, then such a driver is under the influence of intoxicating liquor, within the meaning of the statute.

      “Now, once again, driving under the influence of intoxicating liquor means the driver has become so affected in his mental, physical, or nervous processes that he lacks to an appreciable degree the ability to function properly in relation to the operation of his automobile.” (Emphasis added.)


source: Caselaw Access Project

author: Norcott, J.

license: Public Domain

text:
    John Franklin v. Robert Berger et al.
    (6118)
    Daly, Norcott and Foti, Js.

      Argued December 8, 1987—
    decision released June 28, 1988

      Allison Rutland Soulen, law student intern, with whom were Mary A. McCarthy and, on the brief, Miriam Berkman, for the appellant (petitioner).

      Carl J. Schuman, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, William J. McCullough, assistant attorney general, and Elizabeth A. Staugaard, law student intern, for the appellee (respondent).
   Norcott, J.

The petitioner appeals from the denial of his petition for a writ of habeas corpus. The sole issue in this appeal is whether the court erred in concluding that the state had not violated the equal protection clauses of both the state and federal constitutions by declining to credit against the length of an insanity acquittee’s commitment to a mental hospital the time spent in confinement prior to trial. We find error.

The facts of this case are not in dispute. On March 5, 1976, the petitioner was arrested and charged with manslaughter in the first degree in violation of General Statutes § 53a-55. Bail for the petitioner was initially set at $100,000, but was later reduced to $50,000. The petitioner, however, was unable to post bond because of his indigency. The petitioner thereupon spent some 293 days in jail awaiting trial. In addition, the petitioner spent 378 days in a mental hospital prior to trial while his competency to stand trial was determined.

On January 5, 1978, a criminal court adjudged the petitioner not guilty by reason of insanity. Pursuant to General Statutes (Rev. to 1977) § 53a-47 (repealed and replaced by General Statutes § 17-257), the petitioner was sent to Norwich Hospital for psychiatric examination. On April 27,1978, after the petitioner had been examined, the court ordered him committed to confinement in a mental institution for a maximum term of ten years. Thereafter, the state declined to credit the petitioner’s pretrial confinement time against the maximum term of his commitment.

On March 24,1987, the petitioner filed a petition for a writ of habeas corpus alleging that the refusal to grant him credit for his pretrial confinement was violative of the equal protection guarantees of the federal and state constitutions. The habeas court rejected this argument and found for the state on all claims.

The petitioner has since appealed to this court from the decision of the habeas court. While the petitioner’s appeal was pending before this court, however, the maximum term of his commitment expired. The state has since taken steps to have the length of the petitioner’s commitment extended.

Since the petitioner’s maximum term of commitment has expired, we must first determine whether we have authority to hear the petitioner’s claim that his pretrial jail time should have been credited against that term of commitment. “ ‘ “It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944); McCallum v. Inland Wetlands Commission, 196 Conn. 218, 225, 492 A.2d 508 (1985); Accurate Forging Corporation v. UAW Local No. 1017, 189 Conn. 24, 26, 453 A.2d 769 (1983); State Farm Life & Accident Assurance Co. v. Jackson, 188 Conn. 152, 156, 448 A.2d 832 (1982); CEUI v. CSEA, 183 Conn. 235, 246, 439 A.2d 321 (1981). “In the absence of an actual and existing controversy for us to adjudicate in any sense of the term, the courts of this state may not be used as a vehicle to obtain judicial opinions upon points of law; Reply of the Judges, 33 Conn. 586 [1867]; and where the question presented is purely academic, we must refuse to entertain the appeal. Young v. Tynan, 148 Conn. 456, 459, 172 A.2d 190 [1961].” Connecticut Foundry Co. v. International Ladies Garment Workers Union, 177 Conn. 17, 19, 411 A.2d 1 (1979),’ Shays v. Local Grievance Committee, 197 Conn. 566, 571-72, 499 A.2d 1158 (1985).” Murray v. Lopes, 205 Conn. 27, 30-31, 529 A.2d 1302 (1987).

In Delevieleuse v. Manson, 184 Conn. 434, 437, 439 A.2d 1055 (1981), our Supreme Court reached the merits of a claim that an inmate was entitled to jail time credit even though the person had been released. In determining that the matter was not moot, the court noted that the issue raised was capable of repetition, yet evading review. A matter which is capable of repetition, yet evading review is reviewable on appeal if (1) the matter affects an ongoing program of the state’s penal or civil system, (2) the matter could affect the petitioner in the future, and (3) the public importance of the matter makes it desirable to decide the issue. Shays v. Local Grievance Committee, 197 Conn. 566, 572-73, 499 A.2d 1158 (1985); Delevieleuse v. Manson, supra, 437.

We find that the petitioner’s claim is entitled to review under this standard. Because of the length of time required to file a petition for habeas corpus and then to seek relief via the appellate process, it is unlikely that an appellate court will be able to decide the issue presented in this case in time to afford the insanity acquittee practical relief. Second, the matter affects an ongoing program of the state’s civil system. Third, the matter could affect the petitioner in the future if he is released and again commits a crime. Fourth, we find that this is a matter of great public importance and, therefore, should be reviewed at this time.

We begin our analysis of the substance of the petitioner’s claim by noting that the equal protection clause of the fourteenth amendment to the United States constitution provides that no state shall “deny to any person within its jurisdiction the equal protection of the law.” Similar protection is afforded persons in this state by article first, § 20, of the Connecticut constitution. Frazier v. Manson, 176 Conn. 638, 645, 410 A.2d 475 (1979). As this court has recognized, “[ejqual protection of the laws is a constitutional shield . . . which prohibits unequal treatment by the law of those who are similarly situated. Henry v. White, 359 F. Sup. 969, 971 (D. Conn. 1973); New Haven Metal & Heating Supply Co. v. Danaher, 128 Conn. 213, 218-19, 21 A.2d 383 (1941).” State v. Candito, 4 Conn. App. 154, 159, 493 A.2d 250 (1985). “[T]he equal protection clause does not reject the government’s ability to classify or ‘draw lines’ in the creation and application of laws. Rather, it guarantees that those classifications will not be based on impermissible criteria.” Al-Charles, Inc. v. Heintz, 620 F. Sup. 327, 335 (D. Conn. 1985).

To determine whether a particular classification violates the guarantees of equal protection, we must consider the character of the classification, the individual interest affected by the classifications, and the governmental interests asserted in support of the classification. Dunn v. Blumstein, 405 U.S. 330, 335, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1971). Where the classification impinges upon a fundamental right or impacts upon an “inherently suspect” group, it will be subjected to strict scrutiny and will be set aside unless it is justified by a compelling state interest. Laden v. Warden, 169 Conn. 540, 542, 363 A.2d 1063 (1975). Furthermore, classifications impinging upon fundamental rights or suspect groups must be narrowly tailored to further the compelling state interest. “ ‘[I]f there are other, reasonable ways to achieve [the state’s interests] with a lesser burden or constitutionally protected activity, a State may not choose the way of greater interference. If it acts at all, it must choose “less drastic means.” Shelton v. Tucker, 364 U.S. 479, 488 . . . [81 S. Ct. 247, 5 L. Ed. 2d 231].’ Dunn v. Blumstein, [supra 343].” Laden v. Warden, supra, 549. On the other hand, where the classification at issue neither impinges upon a fundamental right nor affects a suspect group it will withstand constitutional attack if the distinction is founded on a rational basis. Laden v. Warden, 542-43; see also McGinnis v. Royster, 410 U.S. 263, 270, 93 S. Ct. 1055, 35 L. Ed. 2d 282 (1972); Dandridge v. Williams, 397 U.S. 471, 484, 485, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1969).

The classification created by the state in this case does impact upon a fundamental right of those insanity acquittees who are confined prior to trial. As our Supreme Court noted in Laden v. Warden, supra, 544, “[t]he refusal to credit the plaintiff with jail time affects the period of his confinement and directly impinges on his fundamental right of liberty. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 [1970]; Brenneman v. Madigan, 343 F. Sup. 128, 138 (N.D. Cal. [1972]).” Similarly, the refusal to credit the petitioner with any other time he spent in confinement prior to trial also affects the petitioner’s period of confinement. Accordingly, the practice of subjecting one who is confined prior to trial to a longer period of confinement must be disavowed unless it is justified by a compelling state interest. Id.

The state claims that it was justified in refusing to credit the petitioner’s pretrial confinement time against the maximum term of his insanity commitment because of the compelling interest the state has in the protection of society. We disagree.

At the outset, we acknowledge that the state does have a compelling interest in the protection of society. In particular, the state has a compelling interest in protecting society from those persons who have committed a crime and have been adjudged to be mentally ill and a danger to society. Jones v. United States, 463 U.S. 354, 364, 103 S. Ct. 3043, 77 L. Ed. 2d 694 (1982); see also Addington v. Texas, 441 U.S. 418, 426, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979). The question in this case is whether the method chosen to further that interest is rationally related to the end sought and, if so, whether the state’s interest could be adequately addressed by less intrusive means. Laden v. Warden, supra, 547, 549.

Connecticut has chosen to protect society from those who have committed a crime and have been adjudged to be mentally ill and a danger to society by having those persons committed to a mental institution. General Statutes § 17-257c (e) (1). Commitment, itself, has been held to be a legitimate means of furthering the state’s interest in the protection of society. Addington v. Texas, supra, 426. Commitment protects society by isolating the insanity acquittee and providing him with treatment. Jones v. United States, supra. To this end, the United States Supreme Court has held that a state may commit an insanity acquittee until such time as he regains his mental health or ceases to be a danger to society. Id., 370.

In this case, the petitioner was committed to a mental institution pursuant to General Statutes § 17-257c (e) (l) for a period of only ten years. The state had a compelling interest in seeing that the petitioner was not released prior to the expiration of that term of commitment if he had not regained his mental health. The act of denying the petitioner credit for his pretrial confinement time ensures that the petitioner will not be released early if he has not regained his mental health. Accordingly, we find that the act of denying the petitioner credit for his pretrial confinement time does rationally further the state’s interest in the protection of society.

We find, however, that the state’s interest in the protection of society is adequately secured by the provisions of General Statutes § 17-257n (c). This statute protects the state’s interests by allowing the state to petition for the continued confinement of insanity acquittees whose automatic release is imminent but whose release would pose a threat to society. General Statutes § 17-257n (c). If, after the state submits such a petition, a court determines that the acquittee still represents a danger to society, the acquittee will not be released. General Statutes § 17-257e (3).

At the same time, this statute is less intrusive upon the indigent’s fundamental right of liberty than is denying a petitioner credit for his pretrial confinement time. The application of this statute, in lieu of denying an insanity acquittee credit for the time spent on pretrial confinement, ensures that the acquittee who is subject to pretrial confinement will not be subject to a longer period of confinement than are those who are not confined prior to trial unless the state takes affirmative steps to seek such additional confinement, and a court determines that such confinement is necessary.

Because General Statutes § 17-257n (c) adequately secures the state’s interest in the protection of society and is, at the same time, less intrusive upon the indigent’s fundamental right of liberty, we find that denying an indigent insanity acquittee credit for his pretrial confinement time is a violation of the acquittee’s fundamental right to equal protection of the laws.

There is error, the judgment is set aside and the case is remanded with direction to credit the petitioner with the time spent in confinement prior to trial.

In this opinion, the other judges concurred.

       In his petition for habeas corpus, the petitioner also asserted that he was statutorily entitled to have the time he spent in confinement prior to trial credited against the maximum term of his commitment. The petitioner, however, has not raised the statutory claim on appeal. Accordingly, we will not consider it. We will, however, consider the petitioner’s claim that he was constitutionally entitled to such time.

       In reaching this holding, we specifically reject the application of footnote twelve in Johnson v. Mamson, 196 Conn. 309, 493 A.2d 846, cert. denied, 1174 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787 (1985), to the facts of this case. In footnote twelve of Johnson, our Supreme Court applied a rational basis test in reviewing a claim that a nonindigent petitioner be credited with the time spent in confinement in Florida awaiting extradition to this state. Id., 321 n.12.
      In deciding that the language of footnote twelve does not apply here, we first note that the Johnson court was dealing with a different issue from the one with which we are presented today. The court in Johnson was addressing the issue of whether a nonindigent petitioner who was detained prior to trial in another state was entitled to credit for that time; the court did not examine the issue of whether an indigent who spent time in jail in this state solely because of his indigency should be credited with that time. The factual situation in this case is more closely akin to that presented in Laden v. Warden, 169 Conn. 540, 542, 363 A.2d 1063 (1975), where a convicted petitioner sought credit for pretrial jail time spent in this state. We further note that the holding in Johnson is dicta which is not binding on this court and that the Johnson court in no way disavowed the analysis it had advanced in Laden v. Warden, supra. Accordingly, we follow the analysis used in Laden and hold that the state’s refusal to credit the petitioner with his pretrial jail time is violative of the petitioner’s equal protection rights unless the state can demonstrate a compelling interest for refusing to credit the time.

       General Statutes § 17-257c (e) provides: “At the hearing, the court shall make a finding as to the mental condition of the acquittee and, considering that its primary concern is the protection of society, make one of the following orders:
      “(1) If the court finds that the acquittee is a person who should be confined, the court shall order the acquittee committed to the jurisdiction of the board and confined in a hospital for mental illness for custody, care and treatment pending a hearing before the board pursuant to section 17-257d; provided (A) the court shall fix a maximum term of commitment, not to exceed the maximum sentence that could have been imposed if the acquittee had been convicted of the offense, and (B) if there is reason to believe that the acquittee is a person who should be conditionally released, the court shall include in the order a recommendation to the board that the acquittee be considered for conditional release pursuant to subdivision (2) of section 17-257e . . .

       If the petitioner regains his mental health prior to the expiration of his maximum term of commitment, he may apply for a discharge pursuant to General Statutes § 17-257n (a). Furthermore, the superintendent of the hospital to which the acquittee is committed may petition to have the acquit-tee discharged prior to the expiration of his maximum term of commitment and the psychiatric review board may consider the acquittee’s discharge upon its own motion. General Statutes § 17-257m.

       General Statutes § 17-257n (c) provides: “If reasonable cause exists to believe that the acquittee remains mentally ill to the extent that his discharge at the expiration of his maximum term of commitment would constitute a danger to himself or others, the state’s attorney, at least ninety days prior to such expiration, may petition the court for an order of continued commitment of the acquittee.”

       We note that the additional burden placed on the state by the application of this statute is minimal. This statute merely calls for the state to make a petition to the court for further commitment. After the state makes such a petition, the state’s burden of proof is no greater or lesser than it would have been had the petitioner applied for discharge. General Statutes § 17-257e. Acccordingly, this situation is quite unlike that discussed in Jones v. United States, 463 U.S. 354, 366, 103 S. Ct. 3043, 77 L. Ed. 2d 694 (1982), where the United States Supreme Court noted that the state has a strong interest in avoiding a de novo commitment hearing after insanity acquittal—a hearing at which a jury trial may be demanded, and at which the government bears the burden of proof by clear and convincing evidence.


author: Foti, J.

text:
    Brian Collins v. City of Milford et al.
    (5679)
    Dupont, C. J., Borden and Foti, Js.
    Argued March 1—
    decision released June 28, 1988

      Douglas L. Drayton, with whom, on the brief, was Anne Kelly, for the appellants (defendants).

      Gerald F. Stevens, for the appellee (plaintiff).
   Foti, J.

This is an appeal by the defendants from the decision of the workers’ compensation review division sustaining the decision of the workers’ compensation commissioner finding that the injuries suffered by the plaintiff were compensable under General Statutes § 7-314a. The sole issue on appeal is whether the review division was correct in concluding that the plaintiff was “engaged in fire duties”; General Statutes § 7-314; at the time he was injured. We find error in part.

The following facts are relevant to this appeal. The claimant, Brian Collins, filed a claim for compensation under chapter 568 of the General Statutes for an injury which he suffered on September 12,1981, while he was a volunteer fireman and member of engine company no. 5 of the city of Milford (city), one of six such companies serving that city. On that date, his company took part in a parade which concluded at a city park where a muster was planned. The claimant’s company had voted to participate in this muster at a regularly scheduled monthly meeting. The other five volunteer fire companies also participated in the parade and the muster, which consisted of competition among the various volunteer fire companies, the display of antique fire engines and the sale of food and beverages. At approximately 3 p.m., the claimant was asked by Lieutenant William Soda of engine company no. 1 if he would assist other members of that company in loading an antique fire engine on a trailer and assist in returning it to the company headquarters. The trailer was owned by engine company no. 1 and the car towing it was owned and operated by Lieutenant Soda. The claimant rode in the trailer in order to keep the antique fire engine secure. While returning to engine company no. 1 headquarters, the claimant fell from the trailer and fractured his left ankle. He was subsequently hospitalized, and remained out of work until March 22, 1982.

On October 2, 1981, Collins filed a claim for workers’ compensation benefits which the city disputed on the ground that the “[ejmployee was not injured as a result of fire fighting activities.” A formal hearing was held and on November 23,1982, Commissioner Rhoda Loeb found that the claimant was engaged in fire duties within the meaning of General Statutes § 7-314 when he was injured. The commissioner determined that the claimant was “on the direct geographical route back to Station 7 of engine company no. 1 when the accident occurred meeting the requirements of § 7-314, for this section includes fire duties as directly returning from a parade.” The commissioner further found that the requirements of § 7-322a were met in that the claimant was injured while rendering assistance to another volunteer fire company engaged in “fire duties.”

The defendants argue that the commissioner erred in finding that the fire engine being returned was “apparatus or equipment” within the meaning of § 7-314. We do not agree. Parades have been specifically named as functions for which volunteer firemen may receive workers’ compensation under § 7-314a. Because equipment or apparatus other than active fire trucks is often included in parades, it is therefore a reasonable interpretation of the statute that antique equipment is covered by § 7-314. We note that the claimant’s conduct, helping to return the antique fire engine, on the date of his injury is within the purview of General Statutes § 7-322a as he was an active member of a volunteer fire company, whose services were accepted by an officer in charge of another company.

The defendants next claim that the commissioner erred in finding that the claimant was engaged in fire duties at the time of his injury. The term “fire duties” is defined in § 7-314 to include: duties while at fires, answering or returning directly from fires, participation in fire drills or parades, or going to and returning directly from fires, drills or parades. For purposes of the term “fire duties,” the statute makes no distinction between “fires” and “parades.” We conclude that the compensation review division was correct in sustaining the finding of the commissioner that “parades” are “fire duties,” within the meaning of the statute. The commissioner’s factual findings, however, were insufficient to support the review division’s sustaining of the commissioner’s conclusion that the claimant was returning directly from the parade at the time he was injured, thus making his injury compensable under § 7-314a.

We conclude that the record is inadequate for a determination that the claimant was returning directly from a parade at the time he was injured. The commissioner found that the claimant was returning “directly” from fire duties when he fell off the trailer and was injured. In upholding this finding by the commissioner, the review division rejected the town’s argument that “directly” should be interpreted temporally rather than spacially or geometrically. The review division concluded: “We hold rather to the latter meaning of the adverb as expressed in the Euclidian axiom that ‘a straight line is the shortest distance between two points.’ ”

We reject the conclusion of the review division that “directly” as it is used in § 7-314 is limited to spacial considerations. Directly has been variously defined as: “in a direct way, without anything intervening”; Black’s Law Dictionary (5th Ed.); “without a moment’s delay, at once, immediately, in a little while; shortly”; Webster, Third New International Dictionary; “in a straight line or course; without curving, swerving, or deviation”; Ballentine’s Law Dictionary (3d Ed.). Thus, there are circumstances under which a claimant could traverse a direct geographical route but would engage in conduct before or during the sojourn which would take his conduct out of several of these definitions. By contrast, a claimant may follow a circuitous geographical route and, under the particular circumstances, still be found to have traveled directly.

In determining whether a particular claimant was, in fact, returning “directly” from “fire duty,” the commissioner must make factual determinations regarding the intervening time, the nature of the activities of the claimant before commencement of his return and the nature of the activities of the claimant during the actual return. These determinations must be coupled with a consideration of the geographical route followed. All of these factors must be considered in deciding whether the claimant returned directly.

We believe that this fact-bound determination must be made on a case by case basis. There is no simple geometric formula which can be the sole basis for determining whether a claimant is traveling directly to or returning directly from fire duties for which workers’ compensation may be provided in the event a volunteer fireman is injured. Rather, the commissioner must engage in a thorough analysis of both intervening temporal events and the geographic route followed before making the factual finding that the claimant’s conduct comports with the requirements of §§ 7-314 and 7-314a.

In this case, the commissioner must determine whether the muster was an integral part of the parade bringing it within the purview of § 7-314a. If, however, the commissioner finds that the muster was not part of the parade, then the commissioner must determine whether the muster was an intervening event which prevented the claimant’s return from being direct as that term is used by § 7-314. The commissioner must also determine whether the claimant engaged in any conduct, before or during the transport of the antique fire engine, which would constitute a deviation from a direct return to the firehouse.

There is error, the decision of the compensation review division confirming the award is set aside and the matter is remanded for a new hearing limited to the issue of whether the claimant was returning directly to the firehouse at the time he was injured.

In this opinion the other judges concurred.

       General Statutes § 7-314a provides in pertinent part: “(a) Active members of volunteer fire departments shall be construed to be employees of the municipality for the benefit of which volunteer fire services are rendered while in training or engaged in volunteer fire duty and shall be subject to the jurisdiction of the workers’ compensation commission and shall be compensated in accordance with the provisions of chapter 568 for death, disability or injury incurred while in training for or engaged in volunteer fire duty.”

       “[General Statutes] Sec. 7-314. definitions, exemption from public records and meetings law. (a) Wherever used in this section and sections 7-314a and 7-322a, the word ‘municipality’ includes each town, consolidated town and city, consolidated town and borough, city, borough, school district, fire district, fire and sewer district, sewer district, lighting district, improvement association or any other municipal corporation or taxing district, upon which is placed the duty of, or which has itself assumed the duty of, protecting its inhabitants from loss by fire; the term “fire duties” includes duties performed while at fires, while answering alarms of fire, while directly returning from fires, while at fire drills or parades, while going directly to or returning directly from fire drills or parades, while at tests or trials of any apparatus or equipment normally used by the fire department, while going directly to or returning directly from such tests or trials, while instructing or being instructed in fire duties, while answering or returning from ambulance calls where the ambulance service is part of the fire service, while answering or returning from fire department emergency calls and any other duty ordered to be performed by a superior or commanding officer in the fire department; the term ‘active member of a volunteer fire company’ includes all active members of said fire company, fire patrol or fire and police patrol company, whether paid or not paid for their services, except firemen who, because of contract of employment, come under the Workers’ Compensation Act.”

       General Statutes § 7-322a provides: “Any active member of a volunteer fire company which is actively engaged in fire duties, and whose services are accepted by such officer or person, shall be entitled to receive all benefits payable under the provisions of sections 7-314 and 7-314a. Such payments shall be made by the municipality in which the fire company of which such a fireman is a member is located.”


author: Stoughton, J.

text:
    Central National Bank of New York v. Samuel Bernstein
    (5762)
    Bieluch, O’Connell and Stoughton, Js.
    Argued March 16—
    decision released June 28, 1988

      Raymond W. Beckwith, for the appellant (defendant).

      Myra L. Graubard, for the appellee (plaintiff).
   Stoughton, J.

The defendant appeals from a judgment for the plaintiff in an action to recover on two promissory notes. The defendant claims that the trial court erred (1) in permitting the plaintiff to prove lost original notes by claimed photostatic copies, (2) in concluding that the defendant was personally liable on the notes, and (3) in awarding counsel fees without proof of same.

The plaintiff had alleged that the defendant was indebted to it as evidenced by two notes. One note was for $5000 and was dated July 23, 1982, and the other was for $10,000 and was dated August 2, 1982. Neither note had been paid except for a $1000 payment on the $10,000 note, and the unpaid balance on both notes was due and payable. Each note provided for interest at the legal rate upon maturity, as well as for payment of reasonable attorney’s fees, not to exceed 20 percent of the principal.

The trial court found the following facts. The defendant had signed both notes, which notes remained unpaid except for the $1000 payment set forth above. The notes had been executed in New York and both parties agreed that the law of that state would apply. The plaintiff owned the notes and had photostatic copies thereof. The plaintiff was reasonably diligent in searching for the originals, the copies contained the same terms as the originals and had been made in the ordinary course of business. The proceeds of both notes were deposited in the corporate checking account of Max Aig, Inc., a New York corporation no longer in existence and of which the defendant had been president. The proceeds were used to pay off earlier notes.

I

The defendant claims that the trial court erred in permitting the plaintiff to prove the contents of the notes by means of photostatic copies thereof.

The Uniform Commercial Code provides that an action may be maintained on a lost instrument by the owner of the instrument against any party liable thereon. General Statutes § 42a-3-804 and McKinney’s New York Statutes § 3-804 contain substantially similar language. Each provides in part that “[t]he owner of an instrument which is lost, whether by destruction, theft or otherwise, may maintain an action in his own name and recover from any party liable thereon upon due proof of his ownership, the facts which prevent his production of the instrument and its terms.” The plaintiff proved the terms of the instruments by introducing photostatic copies thereof. See Guaranty Bank & Trust Co. v. Dowling, 4 Conn. App. 376, 382, 494 A.2d 1216 (1985).

The trial court found that the plaintiff had proven that it had been reasonably diligent in searching for the original notes and that the photocopies contained the same terms as the originals. Whether the plaintiff sufficiently demonstrated the former existence and present unavailability of the notes and their contents was a question of fact for the trial court. Connecticut Bank & Trust Co. v. Wilcox, 201 Conn. 570, 573-75, 518 A.2d 928 (1986).

This court cannot find facts or draw conclusions from primary facts found, but can only review such findings to determine whether they could legally, logically and reasonably be found and whether the trial court could thereby conclude as it did. Nulman ’s Appeal from Probate, 13 Conn. App. 811, 812, 537 A.2d 495 (1988). The plaintiffs assistant vice president, John Cossen, testified that he was responsible for the commercial loan department record keeping. He testified that he had searched the records vault, but could not find the original promissory notes. He further testified that in the usual course of business when a loan was sent to the legal department, all papers would be forwarded to that department which would then make copies. Cossen testified that copies of the notes were found in the legal department file. He also stated that he had searched the file drawers where the originals would ordinarily be located, but they could not be found. Cossen stated that the originals might have been lost during an office move in 1984. It was neither illogical nor unreasonable for the trial court to have found as it did. The conclusions were reasonably drawn from the facts found.

II

The defendant also claims that the facts of this case compel a finding that he was not personally liable on the two notes. Section 3-403 (2) of the Uniform Commercial Code has been adopted both in Connecticut and New York. Under this section, even an authorized agent who signs his own name to a note is personally obligated if the instrument neither names the person represented nor shows that the signer signed in a representative capacity. Except as otherwise established between the immediate parties, the agent is also personally obligated if the person represented is named but the representative capacity of the agent is not shown, or if the representative capacity of the agent is shown but the person represented is not named. Personal liability may be avoided under the exception where the note is ambiguous by demonstrating that there was an understanding between the parties that the agent intended to execute the instrument in a representative capacity only. “[T]he type of showing needed to bring the note within the ‘except’ clause . . . must necessarily amount to more than the mere self-serving allegation of the signer’s subjective intent to sign as representative. To escape personal liability, the signer has the burden to ‘establish’ an agreement, understanding or course of dealing to the contrary .... Thus, without an affirmative demonstration that the taker of the note knew or understood that the signer intended to execute the instrument in a representative status only, there can be no defense that, notwithstanding the form of the note, representative liability was ‘otherwise established between the . . . parties’. . . . ” (Citations omitted.) Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 229, 385 N.E.2d 1068, 413 N.Y.S.2d 141 (1978). The defendant offered only his own, self-serving allegation of his subjective intent to sign as a representative.

The notes in question do not name Max Aig, Inc., which the defendant claims was the entity represented by him. They do not indicate that the defendant signed the note in any representative capacity, although one of them had an indecipherable scrawl following the signature which may have been “Pres,” although this was not established at trial. Even if that is what it meant, it does not indicate of what entity the defendant was president. The New York courts have held that a signer who neither indicates his alleged principal nor his alleged capacity cannot avoid liability even as to an immediate party. Tropical Ornamentals, Inc. v. Visconti, 115 App. Div. 2d 537, 538-39, 495 N.Y.S.2d 729 (1985); Barden & Robeson Corporation v. Ferrusi, 52 App. Div. 2d 1061, 1062, 384 N.Y.S.2d 596 (1976). When the face of the instrument does not serve to put the holder on notice of limited liability of the signer, resort to extrinsic proof is impermissible. Rotuba Extruders, Inc. v. Ceppos, supra. The showing needed to bring the note within the exception “as otherwise established between the immediate parties” must be more than the mere self-serving allegation of the signer’s subjective intent to sign as a representative. Id. The defendant’s contention that the account number of Max Aig, Inc., which appeared below his signature was sufficient to show that he signed in a representative capacity is meritless. The exact name of the party represented must appear on the instrument. Tropical Ornamentals, Inc. v. Visconti, supra. The trial court did not err in holding the defendant personally liable on the two notes.

Ill

The defendant’s final claim is that the trial court erred in awarding counsel fees without proof thereof. The notes provided for payment of reasonable attorney’s fees. The trial court was in a position to evaluate the complexity of the issues presented and the skill with which counsel dealt with these issues and to fix reasonable attorney’s fees. Guaranty Bank & Trust Co. v. Dowling, supra, 386.

There is no error.

In this opinion the other judges concurred.

       On December 21, 1987, while this appeal was pending, the Federal Deposit Insurance Corporation was substituted for Central National Bank of New York as plaintiff. Central National Bank of New York was formerly Central State Bank.

       The defendant’s claim that the photostatic copies of the notes were not admissible is not reviewable because of his failure to comply with the provisions of Practice Book § 4065 (d) (3).

       Section 3-403 of McKinney’s New York Statutes provides in pertinent part: “(2) An authorized representative who signs his own name to an instrument
      “(a) is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity;
      “(b) except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity, or if the instrument does not name the person represented but does show that the representative signed in a representative capacity.”


author: Per Curiam.

text:
    Robert J. Durham v. Francine M. Miceli
    (5884)
    Dupont, C. J., Spallone and O’Connell, Js.
    Submitted on briefs May 4—
    decision released May 18, 1988

      Robert J. Durham, pro se, the appellant (plaintiff), filed a brief.
   Per Curiam.

The plaintiff has challenged the trial court’s sua sponte dismissal of his action for an annulment of his marriage. The marriage of the parties was previously dissolved by judgment of the Superior Court. The trial court dismissed the plaintiffs action for annulment of marriage on the ground that it lacked jurisdiction because the marriage had previously been dissolved.

We recognize that an annulment and a dissolution of marriage differ fundamentally. An annulment renders the marriage void ab initio while a dissolution is based upon a valid marriage which terminates as of the date of the judgment of dissolution. See Mazzei v. Cantales, 142 Conn. 173, 178, 112 A.2d 205 (1955); Schibi v. Schibi, 136 Conn. 196, 200, 69 A.2d 831 (1949); Davis v. Davis, 119 Conn. 194, 196, 175 A. 574 (1934).

We need not address the legal consequences of an annulment as opposed to a dissolution of marriage in this case, or whether the trial court dismissed this case on correct grounds.

In order to be entitled to an annulment of marriage, the plaintiff must allege and prove that “the marriage is void or voidable under the laws of this state or, the state in which the marriage was performed.” General Statutes § 46b-40 (b). The plaintiffs complaint is devoid of such allegations. The trial court’s action in dismissing the plaintiff’s complaint was, therefore, justified.

Nor need we address the plaintiff’s contention that he should have been afforded an opportunity to argue against the dismissal of his complaint. The trial court was justified, as a matter of law, in dismissing the complaint.

There is no error.


author: Borden, J.

text:
    Patronala Dibble v. Paul Ferguson et al.
    (6299)
    Borden, Spallone and Foti, Js.
    Argued April 6—
    decision released June 28, 1988

      David A. Zipfel, with whom were Vincent Trantolo and, on the brief, Joseph J. Trantolo, Jr., for the appellant (plaintiff).

      Lawrence L. Connelli, for the appellees (defendants).
   Borden, J.

The plaintiff sought damages for physical and psychological injuries caused by the defendants’ dog. The sole issue is whether the trial court erred in refusing to instruct the jury on drawing inferences as to the permanent nature of the plaintiff’s injuries in the absence of medical testimony on the subject. We conclude that the plaintiff was entitled to such an instruction, and find error.

The jury could reasonably have found the following facts. On various occasions in 1985 and early 1986, the defendants’ dog harrassed and attacked the plaintiff on her property. As a result; the plaintiff suffered injury to her left leg. At the time of trial in July, 1987, she was still suffering swelling and pain in her leg. In addition, the incidents caused the plaintiff to experience mental distress. Furthermore, the plaintiff testified to her continuing fear of dog attacks and described herself as a “nervous wreck.” The nature and source of these injuries was confirmed by the plaintiff’s physicians, although these witnesses were precluded from specifically testifying with regard to the permanent nature of her injuries.

The plaintiff requested that the court instruct the jury that it was entitled to infer from the evidence that the plaintiff’s injuries were permanent. The court refused to instruct the jury on this issue and gave no charge on permanency of injuries.

The jury returned a verdict in fayor of the plaintiff in the amount of $909, reduced to $672.66 as a result of the plaintiff’s negligence. After judgment was rendered on the verdict, the plaintiff appealed.

The plaintiff claims that the court erred because there was sufficient evidence for the jury to infer that her injuries were permanent, even though there was no expert medical testimony regarding the permanent nature of the injuries. We agree.

“A trier of facts can conclude, by inference, that an injury will be permanent even though there is no medical testimony expressly substantiating permanency.” Royston v. Factor, 1 Conn. App. 576, 577, 474 A.2d 108 (per curiam), cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984). In Boland v. Vanderbilt, 140 Conn. 520, 102 A.2d 362 (1953), the plaintiff was injured in an automobile accident in which he had received strains, bruises, and contusions and suffered a cerebral thrombosis. In rejecting the defendant’s claim that there was no evidence to support the trial court’s instruction to the jury that it might compensate the plaintiff for permanent injury or physical impairment, for future pain and suffering, and for loss of earning capacity, our Supreme Court concluded that “[a]t the time of the trial, two and a half years after the accident, the plaintiff’s left arm was almost completely paralyzed, he walked with great difficulty, he suffered constant buzzing in his head, headaches and dizzy spells, he had to be driven about to do his customary work, and he was earning less that he had previously. He was before the jury and several of his injuries were of such a nature as to be readily apparent. Speaking broadly, the jury had the opportunity to appraise his condition and the probable future consequences of it.” Id., 523.

Similarly, in Trani v. Anchor Hocking Glass Corporation, 142 Conn. 541, 116 A.2d 167 (1955), the defendant challenged the trial court’s instruction permitting the jury to infer “that the plaintiff’s injury ‘will last some time into the future’ ” because “there was no medical testimony upon which the jury could base an allowance of damages for future disability.” Id., 543. There, a glass jar exploded in the plaintiff’s hand, severely cutting her palm. Our Supreme Court concluded that the challenged instruction was proper, reasoning as follows: “The case was tried before the jury over four years after the occurrence. They saw the plaintiff. She testified that her hand at times ached. It was not improper for the jury to conclude that, if she. still had disability four years after the occurrence, it might reasonably continue into the future. As was said in Boland v. Vanderbilt, supra, 523, the jury had the opportunity of appraising the condition and the probable future consequences of it.” Trani v. Anchor Hocking Glass Corporation, supra, 544. This court has followed the rule of Trani v. Anchor Hocking Glass Corporation, supra, on several occasions. See, e.g., Reilly v. DiBianco, 6 Conn. App. 556, 574-75, 507 A.2d 106, cert. denied, 200 Conn. 804, 510 A.2d 192, 193 (1986); Robinson v. ITT Continental Baking Co., 2 Conn. App. 308, 313, 478 A.2d 265 (1984); Royston v. Factor, supra, 577.

The rule applies to this case. There was sufficient, albeit slim, evidence for the jury to infer that the plaintiffs injuries, caused by the defendant’s conduct, were still present one and one-half to two years after that conduct, and that they were likely to continue on a permanent basis.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.

       In her preliminary statement of issues filed with this court, the plaintiff raised the following additional claim of error: “Did the trial court err in refusing [to allow] witnesses to testify as to permanent disability?” The plaintiff did not brief this issue, however. It is therefore considered to be abandoned. Bartsch v. Planning & Zoning Commission, 6 Conn. App. 686, 688 n.2, 506 A.2d 1093 (1986).

       The plaintiff submitted the following request to charge on the issue of permanency: “Ladies and Gentlemen, you as the trier of fact may draw inferences from facts that you have heard and I have discussed inference with you. You may draw an inference that the injuries the plaintiff has described as permanent and if you find that more probable than not they are permanent, then you may award her damages as you find fair, just and reasonable.”

       The only case to the contrary is Hulk v. Aishberg, 126 Conn. 360, 362-63, 11 A.2d 380 (1940). Hulk, however, has never been cited in that respect since it was decided. Both Trani v. Anchor Hocking Glass Corporation, 142 Conn. 541, 116 A.2d 167 (1955), and Boland v. Vanderbilt, 140 Conn. 520, 102 A.2d 362 (1953), were decided after Hulk. Trani and Boland strongly suggest that the conclusion in Hulk regarding a jury instruction on permanency of injury has been implicitly limited to its facts.


text:
    Raymond Roy v. Stephen Pontiac-Cadillac, Inc.
    (6036)
    Borden, Spallone and Foti, Js.

      Argued April 7—
    decision released July 5, 1988

      Benjamin F. Cardinez, for the appellant (plaintiff).

      Terrence J. Molinari, for the appellee (defendant).
   Borden, J.

The plaintiff appeals from a judgment for the defendant in this suit arising out of the nondelivery of a truck. The plaintiff alleged a breach of contract and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a through 42-110q. The dispositive issue is whether the trial court erred in concluding that the defendant’s peformance under the contract between the parties was excused by virtue of the doctrine of impossibility of performance. We find error in part.

The court found the following facts. On November 7, 1985, the plaintiff agreed to purchase a new motor vehicle from the defendant, a motor vehicle dealership. The vehicle was described in the contract as a three-quarter ton GMC truck with a 350 V-8 engine, standard four-speed transmission, AM radio, painted step-bumper, power steering and a C-Bar. The vehicle was not in stock and had to be ordered from the manufacturer.

On December 5,1985, the manufacturer notified the defendant that the vehicle as ordered was not available because a three-quarter ton truck with a 350 V-8 engine required a heavy duty package, which included heavy duty power brakes, extra capacity rear springs, a heavy duty stabilizing bar, and heavy duty front and rear shocks. The addition of a heavy duty package to the vehicle order would have increased the cost charged by the manufacturer.

The defendant notified the plaintiff of this problem and offered the plaintiff three options: (1) to order the heavy duty package at a reduced price; (2) to take the vehicle as ordered but with a smaller engine which did not require any heavy duty equipment; or (3) to receive a full return of his deposit money, with neither party having any further obligation.

The plaintiff rejected these options and notified the defendant that he considered the defendant to have repudiated the contract. Thereupon, the defendant returned the plaintiffs deposit. The court found that the defendant acted in good faith at all times with respect to the dealings between the parties.

The following month, the plaintiff purchased a three-quarter ton Chevrolet truck with a 350 V-8 engine from a different dealership. That truck was equipped with the heavy duty package, and with two additional items not included in the contract with the defendant. The plaintiff paid more for that truck than he had agreed to pay the defendant for the GMC truck. The court concluded that the defendant’s performance was excused under the doctrine of impossibility of performance because the only performance which was possible by the defendant would have been essentially different from the performance promised. Under the circumstances of this case, however, this conclusion was erroneous.

I

“A modern statement of the impossibility doctrine appears in a leading case. ... ‘It is now recognized that “[a] thing is impossible in legal contemplation when it is not practicable; and a thing is impracticable when it can only be done at an excessive and unreasonable cost.” [Citations omitted.] The doctrine ultimately represents the ever-shifting line, drawn by courts hopefully responsive to commercial practices and mores, at which the community’s interest in having contracts enforced according to their terms is outweighed by the commercial senselessness of requiring performance. When the issue is raised, the court is asked to construct a condition of performance based on changed circumstances, a process which involves at least three reasonably definable steps. First, a contingency—something unexpected-must have occurred. Second, the risk of the unexpected occurrence must not have been allocated either by agreement or by custom. Finally, occurrence of the contingency must have rendered performance commercially impracticable.’ ” J. Calamari & J. Perillo, Contracts (3d Ed.) § 13-1, p. 537, quoting Transatlantic Financing Corporation v. United States, 363 F.2d 312, 315 (D.C. Cir. 1966); see also Hess v. Dumouchel Paper Co., 154 Conn. 343, 349-52, 225 A.2d 797 (1966).

The transaction in this case involved the sale of goods. It is therefore controlled by our statutory codification of the provisions of article 2 of the Uniform Commercial Code (UCC). See General Statutes §§ 42a-2-101 through 42a-2-725. General Statutes § 42a-2-615 codifies § 2-615 of the UCC and provides in relevant part: “Except so far as a seller may have assumed a greater obligation... nondelivery in whole or in part by a seller ... is not a breach of his duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency the nonoccurrence of which was a basic assumption on which the contract was made . . . .” This provision has yet to be applied in any published decision by a court of this state. We therefore look to the interpretation given § 2-615 of the UCC in other jurisdictions and to authoritative commentary on it.

Section 2-615 of the UCC codifies the modern approach to the common law doctrine which is variously termed “impossibility,” “impracticability,” or “frustration of purpose.” See 2 Restatement (Second), Contracts § 261; see also Hess v. Dumouchel Paper Co., supra, 349-52. The theory underlying the approach taken by the UCC and followed by the restatement is that “the obligor is relieved of his duty because the contract, having been made on a different ‘basic assumption,’ is regarded as not covering the case that has arisen. It is an omitted case, falling within a ‘gap’ in the contract.” 2 Restatement (Second), Contracts, Introductory Note to Chapter 11, p. 311.

“Three elements must be proven before excuse becomes available under § 2-615: (1) the seller must not have assumed the risk of some unknown contingency; (2) the nonoccurrence of the contingency must have been a basic assumption underlying the contract; and (3) the occurrence of that contingency must have made performance commercially impracticable.” Iowa Electric Light & Power Co. v. Atlas Corporation, 467 F. Sup. 129, 134 (N.D. Iowa 1978), rev’d on other grounds, 603 F.2d 1301 (8th Cir. 1979), cert. denied, 445 U.S. 911, 100 S. Ct. 1090, 63 L. Ed. 2d 327 (1980). Whether the nonoccurrence of a contingency was such a basic assumption involves a judgment as to which party assumed the risk of its occurrence, a determination to be made in light of all the circumstances, including the terms of the contract. 2 Restatement (Second), Contracts, Introductory Note to Chapter 11, p. 311.

The cases and commentary suggest that “[t]he applicability of the defense of commercial impracticability [under § 2-615] turns largely on foreseeability. The relevant inquiry is whether the risk of the occurrence of the contingency was so unusual or unforeseen and the consequences of the occurrence of the contingency so severe that to require performance is to grant the buyer an advantage he did not bargain for in the contract. If the risk of the occurrence of the contingency was unforeseeable, the seller cannot be said to have assumed that risk. If the risk of the occurrence of the contingency was foreseeable, that risk is tacitly assigned to the seller. The seller’s failure to provide a contractual excuse against the occurrence of a foreseeable contingency may be deemed to be an assumption of an unconditional obligation to perform. Phrased somewhat differently, if a contingency is foreseeable, the section 2-615 defense is unavailable because the party disadvantaged by the fruition of the contingency might have contractually protected itself . . . .’’(Citations omitted.) Waldinger Corporation v. CRS Group Engineers, Inc., 775 F.2d 781, 786 (7th Cir. 1985); see also Mishara Construction Co. v. Transit-Mixed Concrete Corporation, 365 Mass. 122, 129, 310 N.E.2d 363 (1974); Barbarossa & Sons, Inc. v. Iten Chevrolet, Inc., 265 N.W.2d 655, 658-61 (Minn. 1978); J. White & R. Summers, Uniform Commercial Code (2d Ed.), pp. 129-31.

These rules apply whether the contingency occurs after the agreement was made—so-called “supervening impossibility”—or the contingency exists at the time of the agreement—so-called “existing impossibility.” J. Calamari & J. Perillo, supra, § 13-11. One additional requirement, however, applies when a party claims a contract is void due to existing impossibility: “[T]he party seeking to use the doctrine must show that he did not know or have reason to know the facts that made performance impossible.” (Emphasis added.) Id.; 2 Restatement (Second), Contracts § 266 (1) and comment a.

This case presents a situation of existing impossibility. This was not a case where the manufacturer changed its product line or product specifications after the dealer agreed to deliver a vehicle using then current product information. Cf. Selland Pontiac-GMC, Inc. v. King, 384 N.W.2d 490 (Minn. App. 1986) (manufacturer of bus bodies to be supplied under contract went out of business after parties reached agreement). In this case, the manufacturer’s product line was the same at the time of the contract as it was when the defendant was informed that the order could not be filled. Although the fact that the manufacturer would not produce the vehicle as ordered did not actually become known to the parties until after the agreement was made, the condition of impossibility existed at the time of agreement.

The question, then, is whether the defendant had “reason to know the facts that made performance impossible.” J. Calamari & J. Perillo, supra. The defendant’s GMC manager, who reviewed and approved the parties’ agreement on behalf of the defendant, testified that the defendant had publications from the manufacturer which, if consulted, would have disclosed the need to add a heavy duty package to the truck as ordered in order to obtain delivery from the manufacturer. Under these circumstances of undisputed testimony by the defendant’s agent, the defendant had reason to know and should have known that GMC would not build the truck which the defendant agreed to deliver without certain heavy duty equipment. Because the defendant was in a position to know that performance would require additional cost, it must be held, as a matter of law, to have “assumed a greater obligation” to perform the contract, and was not entitled to be excused from performing that obligation pursuant to General Statutes § 42a-2-615.

II

The plaintiff also claims that the court erred in rejecting his CUTPA claim, and in refusing to award him punitive damages and attorney’s fees in connection with his CUTPA claim. The court specifically found that the defendant acted in good faith at all times relevant to the transaction and that the defendant had not committed any unfair or deceptive acts or practices within the meaning of General Statutes § 42-110b. These findings are not clearly erroneous and are fatal to these claims of error.

Ill

The plaintiff sought the following items of damages for breach of contract: (1) consequential damages pursuant to General Statutes § 42a-2-715 (2) in the form of loss of use of the vehicle and loss of eligibility to claim an investment tax credit for the 1985 tax year; and (2) “cover” damages pursuant to General Statutes §§ 42a-2-712 and 42a-2-715 (1). The plaintiff claims that the court erred in failing to award these items of damages.

Although the court found that the defendant was not liable for breach of contract, the court nonetheless addressed and rejected the plaintiffs claim for consequential damages. The court’s rejection of the plaintiff’s claimed loss of an investment tax credit in 1985 and of his claimed loss of use of the vehicle was not clearly erroneous. The plaintiff’s challenge to this conclusion of the court amounts to an attempt to have us retry the facts found by the trial court. Carr v. Mehta, 14 Conn. App. 808, 540 A.2d 725 (1988) (per curiam).

The court did not, however, address the proper calculation of “cover” damages pursuant to General Statutes §§ 42a-2-712 and 42a-2-715 (1), because it erroneously excused the defendant from liability on the contract. The proper measure of such damages in this case requires the resolution of a factual dispute between the parties. We must, therefore, remand the case to the trial court for further proceedings on this issue.

There is error in part, the judgment in favor of the defendant on count one, the breach of contract claim only, is set aside and the case is remanded with respect to that count for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The transcript reveals the following exchange regarding this subject:
      “The Court: I think the question here is, is that did you have information in your agency there that this truck was not available?
      “The Witness: Yes.
      “The Court: So actually, you could have known at that point? You didn’t have to wait for the factory—
      “The Witness: I got an answer back from the factory that—
      “The Court: I know you did. But couldn’t you have known that? Now, usually, when you go in there, into a car dealer, the fellow who’s selling you the car or whoever, he knows what you can have or what you cannot have, with what the individual owner is picking out. That with certain things you want, you have to get this, and you have to get that. Now, didn’t you know at this point, that if he wanted a 350 engine, you couldn’t get it for him?
      “The Witness: I didn’t know that at that point, no.
      “The Court: Yes, but did the agency know it?
      “The Witness: No, they didn’t.
      “The Court: Didn’t you have books there? Don’t you have—
      “The Witness: I have books there.
      “The Court: You don’t have to wait for the factory to let you know that you couldn't have it?

        “The Witness: Yes, you’re right

      “The Court: You had to wait for the factory?
      “The Witness: No, no. Yes, you’re right. It was in the book that we did have.

      * ** *
      “The Court: The agency, if you had looked it up someplace—you have these books—you would have known, if you had actually looked it up. Isn’t that true?

      “The Witness: Yes.” (Emphasis added.)

       In its brief, the defendant claims two alternative grounds upon which the judgment of the trial court may be affirmed. The defendant argues that the parties’ contract was duly rescinded, first, because the contract was the result of a mutual or unilateral mistake excusing performance, and, second, because the parties agreed that the contract was rescinded. These arguments are without merit. The claim of mutual mistake was factually rejected by the trial court. That factual determination is not clearly erroneous. The claim of unilateral mistake was not presented to the trial court. We therefore do not review it. The claim that the parties agreed to rescind the contract was also factually rejected by the trial court. That determination is not clearly erroneous.