author: Borden, J.

text:
    Canton Motorcar Works, Inc. v. Jack DiMartino et al.
    (3588)
    Dupont, C. J., Borden and Spallone, Js.

      Argued November 6, 1985
    decision released March 11, 1986

      Lester Katz, for the appellants (defendants).

      Stacey L. Savin, for the appellee (plaintiff).
   Borden, J.

Following a trial to a jury, the trial court directed a verdict for the plaintiff on one of the counts of its complaint, and the jury returned a verdict for the plaintiff on the remaining counts. The court then rendered judgment for the plaintiff and the defendants appeal. Hereinafter all references to the defendant will refer to the named defendant, Jack DiMartino, except for that portion of this opinion pertaining to claims of error in the court’s judgment regarding a surety bond on which the second defendant, Theresa DiMartino, is a surety. In our discussion of the bond, the defendant will be referred to in his capacity as the principal and Theresa DiMartino will be referred to in her capacity as the surety.

On appeal, the defendant assigns the following as error: (1) the trial court’s refusal to set aside the verdict on the ground that the plaintiff, a corporation, failed to prove its allegation that it was an assignee of its predecessor, a partnership; (2) the trial court’s failure to mark certain proffered items for identification, its imposition of limitations upon the defendant’s cross-examination of one of the plaintiff’s witnesses and its failure to grant the defendant’s motion for mistrial; (3) the court’s failure to give a Secondino charge as requested by the defendant; (4) the court’s award of interest; and (5) the entry of a directed verdict against both defendants on the bond. We find error on the issues concerning the interest and the directed verdict on the bond. The facts pertaining to each issue are set forth in the discussion of each issue.

I

Failure of Proof of Assignment

We discuss this issue first because, if the defendants prevail on it, a remand with direction to render judgment for both defendants would be required. We find, however, no error. Canton Motorcar Works (CMW) was a partnership engaged in the repair and restoration of foreign automobiles. The two partners of CMW were Leigh Miller and Robert Nederostek. In 1977, the two partners joined with one of their employees, James Kelley, and incorporated the automotive repair and restoration business as Canton Motorcar Works, Inc. The following events, which form the basis of the plaintiff’s complaint, took place prior to 1977 and therefore involved only CMW, the partnership. We view these facts in the light most favorable to sustaining the jury’s verdict. State v. Failla, 1 Conn. App. 524, 527, 473 A.2d 1233 (1984).

In October, 1975, the defendant visited CMW and informed the partners that he was interested in repairing and restoring his recently acquired 1952 Mercedes Benz coupe convertible. The partners subsequently viewed the car at the defendant’s place of business and gave him a rough estimate of the cost of the work. A week later, the defendant brought the car to CMW’s place of business where it was partially disassembled and fully inspected. Upon receiving a firm cost estimate of $11,500, the defendant orally agreed to pay that amount and to make periodic payments as the work progressed. During the ensuing weeks, the defendant visited CMW, observed the work in progress, and made payments. He became interested in restoration of the car to its original condition, known as concours condition. Upon discussing the added work that this would entail, he agreed to pay the additional cost of the work. That amount was $3500, thus increasing the full contract price to $15,000.

The defendant stopped visiting CMW in February, 1976. By mid-March, CMW had invested approximately $12,000 worth of time and materials in the project and the defendant had paid approximately $6500. CMW attempted to contact the defendant and, upon finally reaching him, scheduled meetings at which the defendant failed to appear. It became apparent to CMW that the defendant had no intention of complying with the contract. Thus, CMW stopped work in March, 1976, and two months later placed the car and parts in storage.

In October, 1978, the plaintiff filed a complaint alleging, inter alia, breach of an express oral contract, quasi contract, and damages based on the plaintiff’s storage of the car and its parts. The plaintiff alleged that it was “the successor in interest to and assignee of all assets of a partnership formerly doing business as Canton Motorcar Works . . . .” The complaint further stated: “Canton Motorcar Works, Inc., and its predecessor, Canton Motorcar Works are hereinafter collectively referred to as the ‘plaintiff.’ ” In his answer and counterclaim, the defendant referred to “the plaintiff’ without further designating whether he was referring to CMW or CMW, Inc. The defendant’s answer, however, pleads insufficient information regarding the allegation that the plaintiff is the assignee and successor in interest of CMW. In his counterclaim, the defendant alleged damages based on the plaintiff’s alleged breach of contract.

At trial, Miller testified that CMW had been engaged in the business of automobile repair and restoration since 1974. When CMW was incorporated in 1977, it kept the same name, operated out of the same address and carried on the same type of business. In addition, the plaintiff was incorporated by both of the CMW partners. There was no specific evidence introduced of an assignment, by CMW to the plaintiff, of the rights under the contract with the defendant. At the close of all the evidence, the defendant moved for a directed verdict on the ground, inter alia, that the plaintiff failed to prove its allegation that it was the assignee of the claim upon which it was suing the defendant. Upon the trial court’s denial of this motion, the defendant moved to set aside the verdict and renewed his claim regarding failure of proof of assignment. This motion was also denied. On appeal, the defendant first claims that the trial court erred by denying the motion to set aside the verdict based on the failure of proof of assignment. We disagree.

There was ample evidence, elicited by both parties, upon which to conclude that the only significant difference between this plaintiff and its predecessor was the change of operating form that the business underwent in 1977. Although the defendant counterclaimed against the corporate plaintiff, we do not construe that as an admission of the plaintiff’s right to sue on this contract. The defendant properly pleaded insufficient knowledge regarding the assignment of the claim asserted by the plaintiff; Practice Book § 129; which effectively served as a denial of the plaintiff’s right to sue on that claim. See Second Exeter Corporation v. Epstein, 5 Conn. App. 427, 429, 499 A.2d 429 (1985). Therefore, while the factual allegations pertaining to the creation of this plaintiff as a corporate successor to a predecessor partnership have been proven, the issue remains whether, under the facts of this case, it was necessary as a matter of law for the plaintiff to produce additional evidence of an assignment by its predecessor of these particular contract rights.

This issue has not previously surfaced at the appellate level in this state although it has been decided at the trial level. See D.D.J. Electrical Contractors, Inc. v. Nanfito & Sons Builders, Inc., 40 Conn. Sup. 50, 479 A.2d 1250 (1984). We adopt the reasoning of that case, namely, that the situation presented here is analogous to the situation where one corporation succeeds to the business and rights of a predecessor corporation by merger or consolidation. Id., 52; see General Statutes § 33-369.

General Statutes § 33-369 (c) provides in pertinent part: “Upon the effectiveness of a merger or consolidation [of corporations] . . . [t]he surviving or new corporation shall thereupon and thereafter . . . possess all the rights . . . of each of the merging or consolidating corporations; . . . and all debts due on whatever account, and all other choses in action . . . belonging to or due each of the corporations so merged or consolidated, shall be .. . vested in such single corporation without further act or deed.” (Emphasis added.) In addition, subsection (b) of that statute provides that upon the effectiveness of a merger or consolidation, “all merging or consolidating corporations parties to the plan of merger or consolidation, except the surviving or new corporation, shall cease.” Thus, this legislative mandate, which applies to the merger of corporate business entities, acts automatically to transfer the predecessors’ choses in action to its successors, and provides that the former entities, which might otherwise be in a position to assert claims upon those choses in action, cease to exist.

Utilizing this statute as a source of law for application by analogy to the present case, we find ourselves on untraveled but well-charted waters. See, e.g., Landis, “Statutes and the Sources of Law,” Harvard Legal Essays (1934). “It is when the colors do not match, when the references in the index fail, when there is no decisive precedent, that the serious business of the judge begins.” Cardozo, The Nature of the Judicial Process, p. 21 (1921). “Statutes are now central to the law in the courts, and judicial lawmaking must take statutes into account virtually all of the time . . . Hardly ever is a statute now regarded as a candidate for narrow construction because it may be in derogation of the common law. More often, the issue is rather to what extent a statute is itself a source of policy for consistent common law development. ” (Footnote omitted. Emphasis added.) Peters, “Common Law Judging in a Statutory World: An Address,” 43 U. Pitt. L. Rev. 995, 998 (1982); see generally Calabresi, A Common Law For The Age Of Statutes (1982). We find General Statutes § 33-369 to be a sound and effective “source of policy for consistent common law development.” Peters, supra. As our Chief Justice has aptly noted: “[w]e need to learn how to think about statutes by analogy as aggressively and as extensively as we presently think about cases by analogy.” Id., 1002.

In the present case, it is readily apparent that the circumstances surrounding the incorporation of the plaintiff are analogous to the corporate merger situation governed by General Statutes § 33-369. The plaintiff, CMW, Inc., assumed the same name as its predecessor, operated out of the same address, and carried on virtually the same business under the direction of the same principals. In effect, this corporate plaintiff was created as a result of a “merger” with a preexisting partnership. The defendant claims that Nederostek as a former partner in CMW may yet bring suit, thereby exposing the defendant to double liability. We find, however, no support in this record for this assertion. Indeed, Nederostek, as a principal in the corporation which is now suing on this claim, is hardly in a position to sue on this contract once these issues have been litigated and a final judgment rendered. Therefore, the analogy to the corporate merger situation, whereby any would-be claimants cease to exist, is apt. See General Statutes § 33-369 (b). Thus, we hold that it was unnecessary, under the facts and circumstances of this case, for this plaintiff to prove an assignment of these particular contract rights from its predecessor.

II

Evidentiary Rulings and Denial of Motion for Mistrial

During the trial, the defendant sought to introduce into evidence the parts of the automobile, some of which were contained in boxes. The plaintiff objected to the introduction of the car parts and, at the hearing on the plaintiffs objection, the defendant requested that these proffered items be marked as exhibits for identification. The trial court denied this request. On appeal, the defendant claims that the trial court erred by refusing to mark these items for identification. We disagree.

We recognize the well established general rule regarding the marking of potential evidence for identification. “It [is] manifest error for the court to refuse to permit the [proffered items] to be marked as exhibits for identification. The court [has] no discretion to refuse such a request, because to allow such discretion would permit a trial judge to deprive an aggrieved party of a proper record for an appeal.” Duncan v. McTiernan, 151 Conn. 469, 470, 199 A.2d 332 (1964). Likewise, the failure of a party to have an item marked for identification as an exhibit will preclude review. Carpenter v. Carpenter, 188 Conn. 736, 745, 453 A.2d 1151 (1982). Nevertheless, because the essential purpose of these rules is to guarantee a proper record upon which the reviewing court may find error and evaluate the harmfulness of error; id.; the rare occasion may arise where “we find an adequate substitute [for this purpose] in the record.” Plawecki v. Angelo Tomasso, Inc., 1 Conn. App. 48, 49-50 n.3, 467 A.2d 944 (1983). We find this to be one of those rare instances in which the record provides an adequate substitute for the proffered but unmarked items.

The material in question is a disassembled automobile, which includes everything from nuts and bolts to larger items such as the entire chassis, the engine, fenders, doors and the entire composition of the car’s interior. A review of the record indicates that the defendant had admitted as full exhibits forty photographs of the automobile, some of which depict the parts detached from the body before reconstructive work, some showing the parts after work had been done, and others showing the body of the car with and without various parts. The plaintiff had also introduced as full exhibits ten photographs depicting similar material. In addition, the testimony of the witnesses extensively describes the parts depicted in the photographs and the details of the work that had been done on various parts. The jury was permitted to view the photographs while the witnesses testified. Notwithstanding the availability of these fifty photographs and the testimony of the witnesses, the defendant intended to offer the car and parts into evidence, and therefore sought to have these proffered items marked for identification. In support of this request, the defendant argued that some of the photographs depict boxes of the car parts instead of the parts themselves. The trial court ruled that the defendant’s request would impose a cumbersome burden upon the court. Although the court indicated its awareness of the general rule regarding such requests, the court refused to mark the proffered items because of the availability of the photographs. Considering the particular and extreme circumstances of the defendant’s request, and considering the very complete and vivid substitute in the record for the actual car parts, we conclude that the trial court did not err.

Our review of this entire record reveals that any impact occasioned by the trial court’s refusal to mark these items for identification is negligible at best. Of the fifty photographs, only four depict boxes. The other forty six photographs reveal numerous parts of various shapes and sizes. These fifty photographs, combined with the extensive detailed testimony of live witnesses under direct and cross-examination regarding the contents of these photographs, enables us to find in the record an “adequate substitute” for the car parts. See Plawecki v. Angelo Tomasso, Inc., supra. We fail to see how the physical availability of these bulky and cumbersome items, either for the jury or for this court, could have possibly added to either the fact-finding or appellate process.

The defendant also assigns as error the trial court’s limitation, on two occasions, of his cross-examination of the plaintiff, and the denial of his motion for mistrial. The first of these issues, which pertains to the defendant’s attempt to cross-examine the plaintiff in order to elicit the amount of hourly wages paid to the plaintiff’s employees, was rendered moot by the verdict, which awarded no damages in quantum meruit. See footnote 1, supra. The plaintiff’s objection on the basis of relevance was sustained and the defendant duly excepted. On appeal, we restrict our discussion of this issue to the grounds raised in support of the admissibility of the evidence. See Patrick v. Burns, 5 Conn. App. 663, 675 n.3, 502 A.2d 432 (1985). That ground is that the proffered evidence is relevant to clarify, if not rebut, the plaintiff’s claim of damages based on quasi contract. Because the jury verdict was rendered on the express contract count, this issue, which pertains to quasi contract, is now moot.

The second evidentiary ruling assigned as error arose out of the defendant’s testimony regarding an individual who was present during meetings with the plaintiff. When asked on direct examination as to the whereabouts of that individual, the defendant stated, “[h]e’s in Florida, unfortunately,” and later stated, “[unfortunately, as I say, he’s not here.” On cross-examination, the plaintiff introduced into evidence the record of the defendant’s prior felony convictions. One record contained convictions in this state for twenty-seven counts of larceny in the first degree, two counts of larceny in the second degree, and one count of conspiracy to commit larceny in the first degree. Another record revealed convictions of two counts of mail fraud in federal court. The plaintiff then sought to cross-examine the defendant regarding the absent witness. The plaintiff asked, “[i]s this the same [witness] that was named as an unindicted coconspirator in the federal indictment that led to your conviction?” The defendant objected on the ground that this question was irrelevant and highly prejudicial. The court overruled the objection on the ground that the defendant had opened the door. On appeal, the defendant claims the court erred. We find error but also find it to be harmless.

We are aware that “[t]he trial court has broad discretion in determining whether cross-examination is beyond the scope of direct examination.” (Citation omitted.) Larensen v. Karp, 1 Conn. App. 228, 230, 470 A.2d 715 (1984). We find, however, that the trial court abused that discretion in the present case. As the trial court noted, the defendant’s testimony on direct examination referred to the presence of this witness at significant times when there was dialogue relative to the agreement. The reference to the witness’ presence in Florida can only be interpreted as a proper attempt to account for his absence and thus to avoid a Secondino charge. We fail to see how that opened any door to his status as an unindicted coconspirator with the defendant. Furthermore, whatever probative value that evidence had must be balanced against its prejudicial effect. The particular prejudice was the tendency of the evidence to impugn the defendant’s character by suggesting his association with someone with whom he criminally conspired. “The trial court has a duty to exclude evidence which, ‘if admitted, would have a greater prejudicial than probative effect.’ ” State v. Periere, 186 Conn. 599, 609, 442 A.2d 1345 (1982). Any probative value of this evidence was outweighed by its potential for prejudice and, therefore, the trial court erred by allowing this question.

It is also apparent, however, that this error was harmless. As previously noted, the prejudice to this defendant inhered in the tendency of the evidence to impugn his character by association with a criminal co-conspirator. We also note, however, that the defendant’s credibility had already been substantially impeached by the introduction of his numerous federal and state felony convictions. Thus, the prejudice arising from the introduction of this one additional bit of evidence cannot be said to have had a significantly adverse “impact upon the trier and the result”; State v. Bruno, 197 Conn. 326, 336, 497 A.2d 758 (1985) (Shea, J., concurring).

The defendant’s claim of undue prejudice and error in the denial of his motion for a mistrial is unavailing. “[A] mistrial is only warranted if, as a result of some occurrence, ‘it is apparent to the court that ... a party cannot have a fair trial and the whole proceedings are vitiated.’ ” Patrick v. Burns, supra, 673, quoting Ferino v. Palmer, 133 Conn. 463, 466, 52 A.2d 433 (1947). We cannot say that this single question constitutes an occurrence of such a character that the defendant was deprived of a fair trial.

III

Secondino Charge

We next discuss the defendant’s claim that the trial court’s failure to give a Secondino charge, as requested, was error. See Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960). We agree, but conclude that the error was harmless because the defendant was, with the court’s explicit endorsement, permitted to argue the adverse inference to the jury.

This issue arises out of the plaintiff’s failure to call as a witness one of the two partners of CMW, namely Robert Nederostek, notwithstanding his apparent availability to testify. The defendant argues that because of the relationship between Nederostek and the plaintiff, and because Nederostek was present at most of the material contract discussions among the defendant and the partners of CMW, Nederostek was an individual who would naturally be called as a witness by the plaintiff. Thus, the defendant claims that the court erred by failing to instruct the jury, as requested, that they may infer from the plaintiff’s failure to call Nederostek that his testimony would have been unfavorable to the plaintiff’s case.

The Secondino rule is well established. “The failure of a party to produce as a witness one who is available and who naturally would be produced permits the inference that such witness, if called, would have exposed facts unfavorable to the party’s cause. ... To take advantage of this rule permitting an adverse inference, the party claiming the benefit must show that he is entitled to it.” (Citations omitted.) State v. Brown, 169 Conn. 692, 704, 364 A.2d 186 (1975). The requirements of the rule “ ‘must be complied with strictly because of the potentially critical effect of such an inference.’ ” Fontaine v. Coyle, 174 Conn. 204, 212, 384 A.2d 616 (1978).

Whether a witness is one who is available and who naturally would be produced by a party are questions of fact for the jury to find as preconditions to drawing the adverse inference. Fontaine v. Coyle, supra, 209. The court’s role is to make a preliminary determination that the party claiming the benefit of the inference produced sufficient evidence to support a finding of these facts. If that showing has been made, the court should present the issue to the jury with appropriate instructions.

The record indicates that Nederostek lived and worked in the Hartford area and was available to testify at trial. Thus, the determinative issue is whether Nederostek is a witness whom the plaintiff naturally would produce.

“ ‘A witness who would naturally be produced by a party is one who is known to that party and who, by reason of his relationship to that party or to the issues, or both, could reasonably be expected to have peculiar or superior information material to the case which, if favorable, the party would produce.’ Secondino v. New Haven Gas Co., supra, 675.” Grabowski v. Fruehauf Trailer Corporation, 2 Conn. App. 167, 170, 477 A.2d 685 (1984). Clearly, Nederostek was known to the plaintiff. He had been a partner in CMW and a principal in CMW, Inc. In addition, by virtue of his relationship to the plaintiff and the evidence that he was present during material discussions between the parties, he could reasonably be expected to have peculiar or superior information material to the case.

It is also reasonable to conclude that if Nederostek’s information were favorable, the plaintiff would have produced it. The principal dispute between the parties centered around the terms and conditions of an oral contract. In addition, the plaintiffs quantum meruit claim and the defendant’s counterclaim; see footnote 2, supra; placed in issue the extent of damages, if any, which the respective parties suffered. Because of the absence of a written contract, and because of the uncertainty regarding damages suffered by the parties, the testimony of Nederostek, if favorable to the plaintiff, could have added persuasive effect to the preponderance of the plaintiff’s evidence on these issues. Although there is an admittedly fine line between cumulative and noncumulative evidence; see 2 Wigmore, Evidence (3d Ed.) § 287; we believe that under these circumstances the evidence was not cumulative. We conclude, therefore, that it was error to refuse to give the Secondino instruction requested by the defendant.

Having reached this conclusion, we also conclude, however, that this error was harmless. During his final argument to the jury, the defendant proceeded to discuss the fact that the plaintiff did not call Nederostek as a witness. The plaintiff objected during this summation when the defendant intimated that, from this fact, the jury was permitted to draw an adverse inference. In response to an inquiry from the court, the defendant stated: “I’m telling the jury that they can infer that Mr. Nederostek would not have backed up the story of Mr. Miller but would have testified adversely to him . . . .” The court stated: “You may tell them that if you wish, counselor.”

Although this practice is unorthodox and not to be condoned; cf. State v. Daniels, 180 Conn. 101, 113-14, 429 A.2d 813 (1980) (procedure to be followed in criminal cases for Secondino charge); we conclude that the statements of the defendant’s counsel, buttressed by the court’s express approval, effectively “instructed” the jury that they may draw the desired adverse inference. Thus, the error in failing to give the instruction was harmless.

IV

Intekest

We next address the defendant’s claim that the trial court erred in its award of interest as damages. This claim raises two interrelated issues: (1) whether the award of interest was properly made by the trial court rather than by the jury; and (2) whether the amount of the interest awarded was erroneous. Because we conclude that the trial court erred by applying interest to the verdict, instead of leaving for the jury the question of whether interest should be applied, we do not discuss the related issue of whether the amount of interest applied by the court was incorrect.

The jury returned a verdict on the breach of contract count in the amount of $5712. The court accepted this verdict and rendered judgment accordingly, adding interest calculated at the rate of 10 percent per year from March 19,1976. This date was found by the court to be the date on which the defendant’s obligation became due and owing. The jury verdict on the count for damages based on the plaintiff’s storage of the vehicle totalled $3940. The court accepted this verdict and rendered judgment, again adding interest at the rate of 10 percent per year. The court determined July 12, 1978, to be the date on which this debt became due and owing and calculated interest from that date. The defendant claims that the court erred by awarding interest. We agree.

Section 37-3a of the General Statutes provides in part that “interest . . . may be recovered and allowed in civil actions ... as damages for the detention of money after it becomes payable . . . .” It is well established that “[t]he amount of damages to be awarded is a matter particularly within the province of the jury.” Eagar v. Barron, 2 Conn. App. 468, 471, 480 A.2d 576 (1984). Our cases have recognized that interest, as an element of damages, is also a matter within the jury’s province. Id.; see also Rosenblatt v. Berman, 143 Conn. 31, 36, 119 A.2d 118 (1955); Lokes v. Kondrotas, 104 Conn. 703, 709, 134 A.2d 246 (1926). This principle derives from the recognition that “the question of [interest as] damages ... is ... inextricably mixed” with the merits of the underlying claims. Rosenblatt v. Berman, supra, 39. In each case, the jury must determine whether the detention of the money is wrongful under the circumstances, and whether justice requires the allowance of interest as damages for the loss of use of money. Sperry v. Moler, 3 Conn. App. 692, 694-95, 491 A.2d 1115 (1985). Although one case allowed the court to compute interest after a jury had awarded interest but failed to compute it, because such a computation would involve nothing more than a straight mathematical calculation; Nigro v. Hagearty, 33 Conn. Sup. 609, 611, 364 A.2d 241 (1976); this is not such a case.

In the present case, the jury verdicts did not include a finding that interest was due, nor did the verdicts include a finding of the dates from which interest, if any, was to be calculated. Therefore, we conclude that the trial court erred by finding these facts instead of leaving to the jury, under appropriate instructions, the questions of whether interest should be awarded, and, if so, the calculation of the amount of interest.

y

Judgment on Surety Bond

As a prejudgment remedy, the plaintiff was granted an artificer’s lien upon the defendant’s automobile. Subsequently, the defendant filed a motion to dissolve this lien upon the substitution of a bond with surety pursuant to General Statutes § 49-61. The motion was granted upon the defendant’s execution, as principal, of a bond in the amount of $11,000 with the defendant’s wife, Theresa DiMartino, as surety.

In the fourth count of the complaint, the plaintiff alleged, inter alia, that “[s]aid bond remains in full force and effect unless the defendant, Jack DiMartino, shall pay or cause to be paid, any judgment that may be rendered against him herein not exceeding the amount of $11,000.00, with interest and costs, or on default of such payment shall pay or cause to be paid to the officer having the execution issued in such judgment, on demand, the actual value of said automobile as of April 29,1978, not exempt from such lien, not exceeding said amount of $11,000.00.” The defendants admitted this allegation. At the close of all of the evidence, the plaintiff moved that the court instruct the jury to enter a directed verdict on this count because of the defendants’ admissions. The defendants objected on the ground that they merely admitted the allegations of the complaint which pertained to the existence of the bond. The defendants argued that, regardless of their admissions, there was no viable cause of action alleged because there was no allegation in the complaint that a judgment had been rendered against Jack DiMartino which was unpaid. The court overruled the defendants’ objections and directed a verdict in favor of the plaintiff on this count. The defendant, Theresa DiMartino, subsequently raised this ground as a basis upon which the court should set aside the verdict. On appeal, the defendants claim that the court erred by refusing to set aside the directed verdict. We agree.

The bond expressly states that “[t]he condition of this obligation is such that . . . if said Jack DiMartino shall pay or cause to be paid any judgment that may be rendered against him by any court of competent jurisdiction not exceeding the amount of Eleven Thousand ($11,000) dollars, with interest and costs, or in default of such payment shall pay or cause to be paid to the officer having the execution issued on such judgment, on demand, the actual value of the date hereof oí [one 1952 Mercedes Benz automobile] . . . not exceeding said amount of Eleven Thousand ($11,000) dollars, then this bond shall be void, but otherwise in full force and effect.” (Emphasis added.) By its terms, Jack DiMartino, as principal, and Theresa DiMartino, as surety, are bound jointly and severally for the payment of the penal sum indicated.

We disagree with the plaintiff that the defendants’ admissions regarding the material allegations of the pertinent count of the complaint constituted a basis upon which to direct a verdict on this count. The answer merely admits the alleged execution and existence of the bond. It does not admit the legal effect of the bond, namely, the existence of a judgment against the principal which is unpaid.

Second, we note that the plaintiff does not dispute the defendants’ reading of the language of the bond. In this regard, the defendants’ brief states: “Even a cursory reading of the bond . . . indicates that the plaintiff has no right at all under the bond until such time as a judgment had been entered against the defendant, Jack DiMartino, and was unpaid.” We agree with the defendants that the plain meaning of these terms indicates that the defendants’ obligations under the bond were, at most, conditional obligations as of the date of the judgment on the underlying cause of action.

Finally, it is apparent from the language of the bond that a separate proceeding is contemplated in which the conditions of the bond might be proven and the surety would be given an opportunity to assert any available defenses. The bond binds the defendants jointly and severally, subject to the condition that it shall be void if the defendant, Jack DiMartino, “shall pay or cause to be paid any judgment that may be rendered against him . . . not exceeding the amount of . . . $11,000, with interest and costs, or in default of such payment shall pay or cause to be paid to the officer having the execution issued on such judgment, on demand, the actual value at the date hereof of such personal property . . . not exceeding . . . [$11,000.]” Thus, the bond contemplates: (1) a determination whether the defendant, Jack DiMartino, is in default on the underlying judgment secured by the bond; (2) if so, whether he has refused to pay on demand of the officer having execution issued on such judgment; and, (3) if so, whether the value of the automobile, and of his interest in that automobile, as of the date of the issuance of the bond exceeds the penal sum of $11,000. See Whitney Frocks, Inc. v. Jaffe, 138 Conn. 428, 85 A.2d 242 (1951). In addition, at such a proceeding the defendant surety would be entitled to assert any defenses as may be available to her. See generally American Oil Co. v. Valenti, 179 Conn. 349, 353, 426 A.2d 305 (1979).

We see no reason, however, under the procedural posture of this case, to require that those separate proceedings on the bond be a second lawsuit. All the necessary parties are in court. Once the matter of interest as damages is resolved and the principal on the bond is given a reasonable amount of time to pay the judgment, judicial economy suggests that the remaining issues on the bond may then be litigated within the context of the same lawsuit.

There is error in part, the judgment against the defendant, Jack DiMartino, is set aside and a new trial is ordered limited to the question of interest as damages, and the judgment against both defendants on the bond is set aside and the case is remanded for further proceedings on the fourth count of the complaint in accordance with this opinion.

In this opinion the other judges concurred.

       Although the jury returned a verdict on all four counts, one of which was directed by the court, its verdict for the plaintiff on the second count, under which the plaintiff sought damages in quantum meruit, awarded no damages to the plaintiff.

       Judgment was rendered against the defendant dismissing this counterclaim, and the defendant’s appeal therefrom was dismissed by this court as untimely filed. On appeal, the defendant has attempted to revive, as an appealable issue, the trial court’s judgment dismissing his counterclaim. We decline to consider this issue further.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Society for Savings v. Robert H. Kalechman et al.
    (3985)
    Hull, Spallone and Bieluch, Js.
    Argued February 18
    decision released March 18, 1986

      Robert H. Kalechman, pro se, the appellant (named defendant).

      Donald G. Rosenberg, with whom, on the brief, was Alan P. Rosenberg, for the appellee (plaintiff).
   Per Curiam.

There is no error.


author: Per Curiam:.

text:
    State of Connecticut v. Angelo Daniel Joyner
    (3435)
    Hull, Spallone and Daly, Js.
    Argued January 16
    decision released March 18, 1986

      John R. Williams, for the appellant (defendant).

      Julia D. Dewey, assistant state’s attorney, with whom, on the brief, were Arnold Markle, state’s attorney, and Robert J. Devlin, assistant state’s attorney, for the appellee (state).
   Per Curiam:.

The defendant appeals from the judgment convicting him of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) which was rendered upon his guilty plea. He claims that because the court did not, during the plea proceedings, explain to him the essential elements of the crime, or ask him if he fully understood those elements, his plea was not voluntary and, therefore, was made in violation of his constitutional right to due process. He accordingly claims that the trial court erred by denying his motion to withdraw the guilty plea. We agree.

A careful review of the record shows that none of the elements of this offense were explained to the defendant during the taking of the guilty plea. Nor did the court address the defendant personally to determine whether he fully understood the nature of the charge to which he was pleading.

The relevant rules of practice and the pertinent state and federal authorities are too well summarized in State v. Evans, 5 Conn. App. 113, 497 A.2d 73 (1985), to require needless repetition in this case. The following excerpt from Evans, however, sums up the position of this court in response to the state’s assertion that the trial court was entitled to presume that the defendant’s attorney advised him of the nature of the pending charges: “We reject, however, the state’s claim that we may presume that counsel has effectively informed his client of the elements of the offense when the record does not affirmatively disclose an adequate basis for that conclusion. ‘Our rules of practice prescribe a detailed procedure for acceptance of a guilty plea .... Practice Book §§ 712-713. Where the record fails to disclose substantial compliance with this procedure, to cure the omission by resorting to a presumption that counsel has performed a duty of the court would be inconsistent with the principle that the necessary elements for an effective guilty plea must appear in the record. Boykin v. Alabama, [395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)]; State v. Childree, [189 Conn. 114, 120, 454 A.2d 1274 (1983)].’ State v. Marino, 190 Conn. 639, 646-47 n.8, 462 A.2d 1021 (1983).” (Emphasis added.) State v. Evans, supra, 117. Here, there was a total and clear violation of the relevant case law and of the pertinent requirements of Practice Book §§711 and 721.

There is error, the judgment is set aside and the case is remanded with direction to permit the defendant to withdraw his guilty plea and to proceed in accordance with law.


text:
    Andrew Heiskell v. Patricia Heiskell
    (3719)
    Dupont, C. J., Borden and Bieluch, Js.
    Argued January 7
    decision released March 18, 1986

      Mark A. Rubenstein, with whom, on the brief, was Harold Brienes, for the appellant (plaintiff).

      Warren P. Joblin, for the appellee (defendant).
   Per Curiam.

In this appeal from a judgment dissolving the marriage of the parties, the plaintiff husband primarily claims that General Statutes § 46b-81 is unconstitutional because it violates the fourteenth amendment to the federal constitution and article first, §§ 8 and 10 of the state constitution. He also claims that the state trial referee, acting as the trial court, awarded alimony without considering all of the relevant criteria of General Statutes § 46b-82.

His claims of unconstitutionality warrant a summary disposition. The plaintiff admitted in oral argument before this court that he did not raise these claims in the trial court, thus precluding their consideration at the appellate level. See Practice Book § 3063; Keating v. Glass Container Corporation, 197 Conn. 428, 431, 497 A.2d 763 (1985); Trubowitz v. Trubowitz, 5 Conn. App. 681, 685, 502 A.2d 940 (1985). Further, the plaintiff sought relief provided by the statute in the proceedings below and, therefore, is barred from challenging the constitutionality of the statute on appeal. See Carofano v. Bridgeport, 196 Conn. 623, 628, 495 A.2d 1011 (1985); Helbig v. Zoning Commission, 185 Conn. 294, 298-99, 440 A.2d 940 (1981); Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 567, 409 A.2d 1020 (1979).

The plaintiffs claim that the trial court erred in not considering all of the relevant criteria of General Statutes § 46b-82 in making its award of alimony lacks merit. A review of the record indicates that the trial court made its award as required by law and that the award is amply supported by the record. The court was not required to recite the statutory criteria which it considered in making its award, nor was it required to make express findings with regard to each of the factors listed in General Statutes § 46b-82. Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982); Scherr v. Scherr, 183 Conn. 366, 368, 439 A.2d 375 (1981).

There is no error.


text:
    Louis Mauriello v. Arrow Carrier Corporation
    (4108)
    Hull, Daly and Bieluch, Js.
    Argued February 11
    decision released March 18, 1986

      Mark M. Wrenn, with whom, on the brief, was James P. Caulfield, for the appellant (defendant).

      Charles B. Angelo, for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    Tara Chand Nanavati v. Department of Health Services
    (4074)
    Hull, Spallone and Bieluch, Js.
    Argued February 14
    decision released March 18, 1986

      John D. Sailing, for the appellant (plaintiff).

      Maite Barainca, assistant attorney general, with whom were Richard J. Lynch, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, for the appellee (defendant).
   Per Curiam.

The plaintiff appealed to the Superior Court, under General Statutes § 4-183 of the Uniform Administrative Procedure Act (UAPA), from a final decision of the board of veterinary registration and examination. The board moved to dismiss the appeal on the ground that the citation accompanying the plaintiff’ s petition for appeal named the department of health services as defendant rather than the board, which was the agency whose final decision was being appealed. The trial court granted the motion to dismiss concluding that it lacked subject matter jurisdiction because the plaintiff, by not citing the board as defendant, had failed to follow strictly the requirements of § 4-183 for appealing from an agency decision. The plaintiff, thereafter, filed this appeal. We agree with the trial court’s decision, and accordingly, we find no error.

General Statutes § 4-183 requires the party who is appealing an agency’s decision to include with his petition for appeal a proper citation. Daniels v. New Haven Police Department, 3 Conn. App. 97, 99, 485 A.2d 579 (1985). “[Fjailure to cite a necessary party to the appeal renders the appeal dismissable for lack of jurisdiction.” Id. Neither party contests this interpretation of General Statutes § 4-183. Rather, the dispute focuses on whether it was sufficient for the plaintiff to cite the department of health services rather than the board. The trial court held that the board, not the department of health services, was the “agency” that rendered the decision which was the subject of the appeal and, therefore, that it was the board which the plaintiff was required to cite.

The court was correct in its decision. General Statutes § 4-166 (1) of the UAPA defines “agency” to mean “each state board, commission, department or officer . . . authorized by law to make regulations or to determine contested cases. ” (Emphasis added.) General Statutes § 20-196b, by providing that “[t]he board of veterinary registration and examination shall (1) hear and decide matters concerning suspension or revocation of licensure, (2) adjudicate complaints filed against practitioners licensed under this chapter, and (3) impose sanctions where appropriate,” clearly authorizes the board to determine contested cases. Accordingly, the board is an “agency” within the meaning of the UAPA and its appeal provisions.

An examination of General Statutes § 19a-17 confirms the trial court’s conclusion that the board, and not the department of health services, was the appropriate party defendant. That statute authorizes the board to take certain disciplinary actions and sanctions against persons it licenses “upon finding the existence of good cause,” and gives the same power to the department of health services “with respect to professions under its jurisdiction which have no board or commission.” (Emphasis added.) Accordingly, it is the board that has the power to discipline the veterinary profession. The board’s actions, therefore, are reviewable under the UAPA but the appeal must cite it, and not its supervisory umbrella department.

The board being an agency within the meaning of General Statutes § 4-166 (1), separate from the department of health services, held the disciplinary hearings involved in this case. Because the board was the sole agency that took the action by which the plaintiff claims to be aggrieved, it and not the department of health services, was the proper party defendant.

The right to appeal to the court from an administrative agency decision exists only where authorized by statute and only where the aggrieved party strictly complies with the statutory provision by which the right of appeal is granted. Newtown v. Department of Public Utility Control, 3 Conn. App. 416, 419, 488 A.2d 1286 (1985). Here, the plaintiff, by not citing the proper defendant, failed to follow the requirements for appealing from the board’s decision as outlined in General Statutes § 4-183. Accordingly, the trial court was correct in concluding that it had no jurisdiction over the appeal.

There is no error.

       The trial court in its memorandum of decision observed: “Connecticut Practice Book § 142 provides that any defendant (emphasis provided) may contest the court’s jurisdiction. The Board has not been cited as a party defendant. As such, the Board may not bring this motion. However, whenever a lack of jurisdiction appears on the record, the court must consider the question before further action can be taken.” This procedural irregularity has not been raised on appeal. For that reason we do not add to the trial court’s remarks.

       For cases in which the hearing tribunal has been held not to have status independent of the parent commission or board and thus was found not to be the appropriate defendant in an administrative appeal, see Board of Education v. Department of Education, 198 Conn. 445, 503 A.2d 1147 (1985) (a hearing board consisting of an ad hoc hearing officer); Catholic Family & Community Services v. CHRO, 3 Conn. App. 464, 489 A.2d 408 (1985) (hearing examiner appointed by the chairman of the commission).


author: Bieluch, J.

text:
    Donald J. Chairamonte v. John R. Manson, Commissioner of Correction
    (2798)
    Dupont, C. J., Spallone and Bieluch, Js.
    Argued December 3, 1985
    decision released March 18, 1986

      Max F. Brunswick, for the appellant (petitioner).

      Julia D. Dewey, assistant state’s attorney, with whom, on the brief, was Arnold Markle, state’s attorney, for the appellee (respondent).
   Bieluch, J.

This is an appeal from the trial court’s denial of Donald J. Chairamonte’s petition for a writ of habeas corpus. The writ, if granted, would have resulted in Chairamonte’s release from the Connecticut Correctional Center at Somers. We conclude that the court did not err in denying that petition.

The facts are not in dispute. On the night of May 22, 1978, Lisa DeMattie, who had occasionally dated the petitioner, was walking on Beach Avenue in Milford when Chairamonte stopped his car and asked to speak with her. She refused to talk to him and ran across the street. He then got out of his car with a shotgun and fired it in her direction. He was also carrying a knife. She continued to run away, but he caught her. He then began kissing her, at the same time cutting her back with the knife. The petitioner then returned to his car and drove away. A police alert was issued after DeMattie reported the incident to them.

Officer Michael Hanlon of the Milford police recognized Chairamonte’s car while on patrol duty that night and gave chase when the driver, Chairamonte, tried to elude him at a very high speed through Milford and into the next town, West Haven. When Chairamonte was finally stopped, he jumped out of the car and fired his shotgun through the cruiser’s windshield, narrowly missing the officer. After a brief foot chase, Chairamonte was apprehended and arrested on two counts of attempted first degree assault in violation of General Statutes §§ 53a-49 (a) (1) and 53a-59 (a) (1). A similar third count was added shortly before trial on September 12, 1979.

On June 6, 1978, Attorney John Williams filed an appearance on behalf of Chairamonte. Counsel obtained a psychiatric evaluation of the defendant’s competence to stand trial pursuant to General Statutes (Rev. to 1977) § 54-40 (now § 54-56d). Chairamonte was found to be competent to stand trial since he could understand the proceedings against him and was able to assist in his defense. Pursuant to Practice Book, 1963, § 2169 (now Practice Book § 758), counsel also filed a notice that Chairamonte “may rely upon the defense of mental disease or defect . . . .” At Chairamonte’s request, this defense was not pursued at trial, contrary to the written recommendation of Williams that this was “the strongest possible defense in your case.”

On September 10, 1979, Attorney Sue L. Wise, a partner of Attorney Williams, filed her appearance for Chairamonte. On that day, she appeared before the presiding judge, Kinney, J., to request permission to try the case in place of Williams who was involved in a protracted trial in Waterbury. Permission was granted and, on the next day, Wise appeared before the trial judge, Foti, J., seeking severance of the third count of the information and another competency evaluation pursuant to § 54-40. Both of these motions were denied. Later in the day, Wise was informed that jury selection would commence on the following day.

On September 12, 1979, Wise moved for a continuance “of at least a week” for further preparation of the case. That request was denied, but the court delayed the trial by ordering jury selection to commence on the following day, and further ordered that jury selection would take place only during morning hours to allow Wise to be free in the afternoon for additional trial preparation. The jury was selected and sworn in on September 25,1979, after which the court adjourned until the following day for the commencement of trial. Sixteen days had elapsed between Wise’s appearance and the commencement of trial.

On October 4,1979, the jury found Chairamonte guilty on all three counts of attempted first degree assault, after which he was sentenced to a term of imprisonment. Chairamonte appealed from the judgment of guilty to the Supreme Court; State v. Chairamonte, 189 Conn. 61, 454 A.2d 272 (1983); claiming that his sixth amendment right to effective assistance of counsel was denied because (1) his privately retained attorney did not adequately prepare or present an insanity defense, and (2) the trial court forced him to go to trial represented by an attorney other than the one he had already retained, and that second attorney was totally unprepared to try the case. The court found no error. In its opinion, the court noted that the petitioner’s claims, which were identical to those presented in the habeas corpus proceeding here, could not adequately be reviewed on the basis of the appellate record. Id., 64. The court stated that “[without a hearing in which the reasons for counsel’s decision may be elicited, any decision of ours on this claim would be entirely speculative.” Id. Thus, the court concluded, the issues claimed on appeal were more appropriately pursued on a petition for new trial or on a petition for a writ of habeas corpus, rather than on direct appeal. Id., 64-65. Hence, the present petition was filed.

By this petition, Chairamonte claimed: (1) that his pretrial and trial counsel did not adequately prepare or present a defense based on insanity or diminished mental capacity as affecting the issue of intent; and (2) the trial court forced him to go to trial represented by an attorney other than the one he retained, and who was totally unprepared to try the case. The court below rejected these claims and Chairamonte has appealed, raising these same claims before this court. We find no error.

Chairamonte’s first claim of error specifically briefed is that Williams and Wise provided him with ineffective assistance of counsel because they failed to pursue a defense of diminished capacity until the eve of trial, when Wise first discussed such a defense with him. This argument presupposes that such a failure somehow detrimentally affected the presentation of that defense. The record does not support that claim.

Before trial, the petitioner and Wise discussed a defense based on diminished capacity as affecting the issue of intent. A psychiatrist, Dr. Peter Kramer, was employed as a defense witness. The habeas court found that there was no evidence that a mental test was scheduled, or that a continuance of the trial for a test to be conducted immediately, was ever requested. The psychiatrist did not testify at the habeas corpus proceeding. The part Dr. Kramer played in the formulation and presentation of this defense was related by the testimony of Wise. In its memorandum of decision, the trial court observed: “Counsel had spent a lot of time consulting with the doctor before his testimony. She did what she could and more with an expert witness who just would not give a reasonable medical opinion.” This finding was based on the testimony of Wise that “when we were talking and preparing for his testimony, he was much stronger in his opinion than when he was on the stand.” The court’s concise conclusion therefrom was that this was “not incompetence but rather one of the ordinary problems of trial.” There was no evidence presented by the petitioner in the hearing below from which the court could have found that the relatively short period of time between the decision to use a diminished capacity defense and Dr. Kramer’s nonconclusory testimony was the cause of his lack of a reasonable medical opinion on the defense offered. Notwithstanding any pretrial indication or preview of testimony by a witness, there is no guarantee or certainty of the testimony under oath on the witness stand. The witness is properly guided by his knowledge and conscience. It is for this reason that witnesses are administered an oath. The trial court called the unpredictable testimony of a witness, an expert witness in this case, “one of the ordinary problems of trial.” More aptly stated, “it is one of the inherent risks of trial.”

Chairamonte had the burden of proving that the conduct of Williams and Wise fell below the standard of conduct required of counsel. Levine v. Manson, 195 Conn. 636, 490 A.2d 82 (1985). That standard is whether “counsel’s performance was ‘reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.’ State v. Clark, 170 Conn. 273, 283, 365 A.2d 1167, cert. denied, 425 U.S. 962, 96 S. Ct. 1748, 48 L. Ed. 2d 208 (1976), quoting Gentry v. Warden, 167 Conn. 639, 646, 356 A.2d 902 (1975).” Miller v. Angliker, 4 Conn. App. 406, 419, 494 A.2d 1226, cert. denied, 197 Conn. 809, 499 A.2d 59 (1985). Chairamonte was also required to prove “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, reh. denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984); Miller v. Angliker, supra.

We conclude that the trial court correctly assessed Wise’s difficulty in establishing her medical claim through Dr. Kramer as “not incompetence but rather one of the ordinary problems of trial.” Wise’s efforts fell well within the bounds of reasonable competence. Further, the petitioner failed to establish that any “error” made by counsel, if rectified, was reasonably likely to have changed the result of the criminal trial.

Chairamonte’s second claim is that the court erred in finding that he was not denied effective assistance of counsel when he was forced to go to trial represented by counsel other than the lawyer he retained, and when trial counsel was unprepared. We conclude that the court did not err.

Chairamonte’s argument is, essentially, that deprivation of counsel of choice constitutes ineffective assistance of counsel regardless of the competence of substituted trial counsel. Chairamonte has offered no evidence to prove that, had Williams represented him, the result of his trial might have been different. Nor, as we have already stated, has Chairamonte demonstrated that the quality of Wise’s efforts was below an acceptable standard. Thus, the substitution of Wise for Williams cannot be said to have constituted ineffective assistance of counsel.

A review of the record discloses that Wise had extensive criminal and litigation experience at the time of her appearance in behalf of Chairamonte. At the habeas corpus hearing, she testified that she was given a sufficient amount of time in which to prepare a defense. She detailed for the court her trial preparation, some of which included extensive consultations with Williams. In addition to reviewing the trial file and notes, she consulted with three psychiatrists concerning the possibility of utilizing an insanity defense. In her opinion, none of these psychiatrists would have been effective as a defense witness. They could not testify that the petitioner was insane at the time of the crimes. Consequently, she attempted to utilize the testimony of Dr. Kramer, the psychiatrist who had examined Chairamonte pursuant to General Statutes § 54-40 at the outset of the criminal proceedings, to negate the element of specific intent in the charges confronting him. In that effort, she was unsuccessful in court.

Dr. Kramer could not form an opinion without “more testing to speak with more authority.” Wise had no notice of this before the psychiatrist’s testimony at the criminal trial. At the habeas corpus hearing, however, the court found that “[Dr. Kramer] had a great deal of exposure to the petitioner — 9% hours between September 17,1979 and October 3,1979 as well as the time of the competence exam which was ‘several hours.’ ” The trial testimony of Dr. Kramer was not refuted at this hearing. He was not called to testify then and there was no evidence offered that the tests which he allegedly might have performed would in any way have changed his trial testimony.

Wise had sixteen days, except for twenty-seven hours spent in jury selection, to prepare the single defense chosen. She testified that she had the ability to defend the petitioner against the charges, and that she had adequate time to prepare the defense. Chairamonte did not refute her testimony. The court found her competent and also found that no action or inaction by her in any way harmed the petitioner or prejudiced his defense. The court below complimented the professional competence of Wise with these remarks: “She had established a very good working relationship with petitioner before and during the evidentiary trial. She is an experienced trier and her testimony and the transcript bear out that she has skills beyond those displayed by lawyers with ordinary training and skill in criminal law.”

There is no error.

In this opinion the other judges concurred.

       We note that the petitioner’s prior direct appeal was made necessary by the “deliberate bypass” rule, which has since been eviscerated. State v. Leecan, 198 Conn. 517, 541-42, 504 A.2d 480 (1986). See also State v. Rivera, 196 Conn. 567, 571, 494 A.2d 570 (1985); Miller v. Angliker, 4 Conn. App. 406, 417, 494 A.2d 1226, cert. denied, 197 Conn. 807, 499 A.2d 59 (1985).

       Our conclusion with regard to Chairamonte’s first claim obviates the need for any further discussion of the argument that Wise was unprepared for trial. There is no evidence to contradict Wise’s testimony recounting her extensive trial preparations. Wise further testified that there were no defense witnesses available other than Dr. Kramer and that she had “a sufficient period” during the presentation of the state’s case in which to prepare Kramer for his testimony.


author: Spallone, J.

text:
    Robert A. Epstein v. Automatic Enterprises et al.
    (3408)
    Hull, Spallone and Daly, Js.
    Argued January 17
    decision released March 18, 1986

      PaulE. Pollock, for the appellants (defendant Albino J. Romano et al.).

      Lawrence M. Lapine, for the appellee (plaintiff).
   Spallone, J.

The plaintiff brought suit against the defendants, several corporations and two individuals, in three counts claiming conversion, breach of contract and unjust enrichment. The jury returned a verdict in favor of the plaintiff on the conversion count in the amount of $77,215.83 and on the unjust enrichment count in the amount of $3500. The jury returned a defendants’ verdict on the contract count. The defendants thereafter filed a motion for judgment notwithstanding the verdict in accordance with their prior motion for a directed verdict and motion to set aside the verdict. The individual defendants appeal from the judgment rendered after the court denied these motions.

They claim (1) that the evidence submitted was insufficient to establish a cause of action in conversion because the plaintiff did not make a demand upon the defendants for the return of the property, and (2) that the trial court erred in its charge to the jury with regard to the burden of proof and the measure of damages.

From the evidence submitted the jury could reasonably have found the following facts. The individual defendants, Albino Romano (Romano, Sr.) and Dorothy Romano (D. Romano) conducted a food and beverage vending machine business in the city of Stamford for about twenty-five years prior to 1977. In the spring of 1977, they sold one-half of the business to Bruce Kosman and Leonard James, and transferred the remaining one-half of the business to their son, Albino Romano, Jr. (Romano, Jr.), who lived with them and who was employed in the business. The three new owners set up a new corporation, the defendant Automatic Enterprises, Inc. (Automatic), and hired Romano, Sr., to continue to service the vending machines. The defendants, Romano, Sr., and D. Romano had installed and serviced vending machines at the Pitney-Bowes manufacturing plant for many years. In order to keep this business, the new owners were required to replace some old machines. Some time prior to June, 1977, Automatic ordered twenty-four food and beverage vending machines from National Vendors. After placing the order, Kosman and Romano, Jr., discovered that they did not have the money and could not arrange for financing on their own to pay for the machines.

Norman Reader, who was their banker, suggested that Kosman and Romano, Jr., contact an investor who might buy the machines for his own account and then lease them to Automatic. He advised them that an investor might work with them on a business arrangement where the investor would receive the tax benefits of ownership and Automatic would have the use of the machines.

The plaintiff, with whom Reader and Kosman were friendly, was a customer at Reader’s bank. Reader suggested to Kosman and Romano, Jr., that they speak to the plaintiff about investing in the machines. After meeting with Kosman and Romano, Jr., the plaintiff agreed to purchase the twenty-four vending machines required for the Pitney-Bowes installation. The plaintiff made arrangements with Reader’s bank to borrow the necessary funds and to make monthly payments on a resulting note. There was no formal written agreement between the plaintiff and Automatic, as the plaintiff had not decided whether to lease the machines or to enter into a management contract.

On or about June 22,1977, the plaintiff was notified that the machines had arrived in Stamford. The plaintiff went to the bank, met with Reader, Kosman and Romano, Jr., and was presented with a bill of lading from the delivering truck driver. The plaintiff paid the amount of $53,153.24 which was due under the bill of lading. Since the bill of lading was made out to Automatic, the plaintiff requested and received a letter from Automatic acknowledging the plaintiff’s ownership of the machines. Subsequently, the plaintiff received a letter from National Vendors recognizing the fact that he had paid for the machines and that they had been sold to him through Automatic. After the machines were paid for, they were taken to Automatic’s warehouse where they were serviced and prepared for installation at Pitney-Bowes. Romano, Sr., worked on the new machines and helped in their installation.

During the summer of 1977, Kosman and James had a falling out with Romano, Jr., and as a result transferred their one-half interest in Automatic back to Romano, Sr., and D. Romano on October 14,1977. At this point, no written agreement had been worked out between the plaintiff and Automatic. The plaintiff made the first payment on his note with the bank when it became due in September, 1977. The amount paid by the plaintiff was $1710. At the same time, Automatic paid the plaintiff $1400. In October, 1977, the plaintiff made the second monthly payment and received a check from Romano, Jr., which was returned for insufficient funds. No further funds were received by the plaintiff from any of the defendants. In November, 1977, when the plaintiff attempted to locate Romano, Jr., he was told that Romano, Jr., had left the state and his whereabouts were unknown.

Some time in October or November of 1977, the defendant Romano, Sr., took possession of the machines and claims that he gave them to his daughter at the same time. In spite of this claim, the defendants continued to service the machines and retained all the revenue they collected from the machines and continue to this date to do so. In 1978, the machines located at Pitney-Bowes grossed $76,943.53 and in 1979, the sales were $75,675.53. The plaintiff paid off his note over a period of three years, but never received any payments from Romano, Sr., and D. Romano.

The defendants’ first claim, that there was insufficient evidence to maintain a cause of action in conversion, is unpersuasive. Conversion occurs when one, without authorization, assumes and exercises the right of ownership over property belonging to another, to the exclusion of the owner’s rights. Falker v. Samperi, 190 Conn. 412, 419, 461 A.2d 681 (1983). “ ‘The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm.’ ” Coleman v. Francis, 102 Conn. 612, 615, 129 A. 718 (1925). The defendants’ assertion that the plaintiff was required to demand the return of the machines to recover in conversion is without merit. Conversions are grouped into two general classes. The first class pertains to instances of tortious taking in that the possession is originally wrongful. Because proof of the tortious act establishes the conversion, a demand for and refusal to return the property in question are unnecessary. Id., 616. “The second class is where the possession, originally rightful, becomes wrongful by reason thereafter of a wrongful detention, or a wrongful use of the property, or the exercise of an unauthorized dominion over the property. In the last two groups of this class, the wrongful use and the unauthorized dominion, constitute the conversion; therefore no demand for the return of the personal property is required. In the first group, since the possession is rightful and there is no act of conversion, there can be no conversion until the possessor refused to deliver up the property upon demand. Unexplained, the refusal is evidence from which a conversion may be found.” Id.

There was ample evidence supporting the jury’s verdict regarding conversion. The evidence of the manner in which Romano, Sr., assumed and exercised the rights of ownership, including his claim that he gave the machines to his daughter, completely supports the jury’s verdict. Under the facts in this case, the jury could readily find that a conversion occurred by a wrongful taking or an illegal assumption of ownership, wholly unauthorized by the plaintiff. See id.

The defendants next claim that the trial court erred when it instructed the jury on the burden of proof. We conclude that this claim is not supported by the record. The charge clearly explained that it was the plaintiffs burden to prove his case by a preponderance of the evidence. The court stated that it was not the obligation of the defendant to disprove the essential elements of the plaintiffs cause of action. The charge in regard to the burden of proof, when read in its entirety, correctly stated the law. It is well settled that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. Van Steensburg v. Lawrence & Memorial Hospitals, 194 Conn. 500, 507, 481 A.2d 750 (1984); Oberempt v. Egri, 176 Conn. 652, 656, 410 A.2d 482 (1979); State v. Cardona, 6 Conn. App. 124, 504 A.2d 1061 (1986); State v. Biller, 5 Conn. App. 616, 622, 501 A.2d 1218 (1985). The test is whether the charge as a whole fairly presented the case so that no injustice was done. Kosko v. Kohler, 176 Conn. 383, 390, 407 A.2d 1009 (1978); State v. Cardona, supra. The charge in this case firmly fixed the legal obligation to prove his case upon the plaintiff and no fair reading of the charge can lead to any other conclusion.

The defendants’ final claim, that the court incorrectly charged on damages for conversion, is also without merit. The court’s charge correctly instructed the jury that in order to assess damages in conversion they were to determine, from the evidence, the market value of property at the time of the conversion. The court went on to define the market value and then stated that if the plaintiff failed to prove the market value to the satisfaction of the jury, they could not award him substantial damages. The court also stated that the plaintiff was entitled to fair compensation for his loss and then said: “if you conclude that the market value — if you find a market value does not truly measure such compensation to him; and if you so conclude, you should award him such a sum as in your sound judgment you decide will fairly compensate him, under all the circumstances, for his actual money loss.” The court did not misstate the law under the circumstances in this case. There is no question that the plaintiff purchased the machines for an investment and had no use for the machines outside of the special and peculiar value the machines represented to him as an investment. The court’s charge is within the parameters of the rule stated in Kuzemka v. Gregory, 109 Conn. 117, 122, 146 A. 17 (1929). There, the court, after stating the general rule that the measure of damages is the value of goods on the date of the conversion, went on to state: “In determining this value it is generally sufficient to show the money value of the goods in the market at that time, since the cost of replacement ordinarily represents the owner’s actual loss. The underlying purpose of the rule is to give full money compensation to the plaintiff for the loss he has suffered by the conversion, and where articles have a market value which can be established, the rule above referred to is held to accomplish that purpose for the reason given. Where ... in the case of goods having a special and peculiar value to the owner, then full compensation requires that he recover ‘the value to him based on his actual money loss, all the circumstances and conditions considered, resulting from his being deprived of the property . . . .’ ”

The damages awarded by the jury are sustainable under either of the alternatives stated above. The machines were only four months old at the time of the conversion and the purchase price paid is evidence of the market value which, with interest added, fully supports the verdict. The amount of damages is also a measure of the plaintiffs actual money loss, all the circumstances and conditions considered, particularly in this case where the owner was an investor and the machines were of no use to him per se, but had a special and peculiar value to him as an investment. “The cardinal rule [of damages] is that a person injured shall receive fair compensation for his loss or injury and no more.” Barker v. Lewis Storage & Transfer Co., 78 Conn. 198, 200, 61 A. 363 (1905). It is axiomatic that he should not receive less than fair compensation.

In summation, the obviously unauthorized use of the plaintiffs property by the defendants clearly obviates the requirement that the plaintiff make demand for return of the machines to enable him to recover in conversion. Further, the trial court’s charge as to the burden of proof and as to the measure of damages, when read as a whole and in the circumstances of this case, were given in accordance with the law.

There is no error.

In this opinion the other judges concurred.


author: Pickett, J.

text:
    Kenneth J. Milano v. Thomas B. Sayers et al. William J. Drew v. Thomas B. Sayers et al.
    (3700)
    (3701)
    Hull, Bieluch and Pickett, Js.

      Argued November 25, 1985
    decision released March 18, 1986

      Eugene A. Cooney, for the appellants (defendants in both cases).

      Anthony A. Tomaro, for the appellee (plaintiff in the first case).

      Richard P. Weinstein, for the appellee (plaintiff in the second case).
   Pickett, J.

The defendants, Thomas B. Sayers and Janet Capasso, have appealed from the judgments rendered for the plaintiffs, Kenneth J. Milano and William J. Drew, on the verdicts entered following a jury trial in these consolidated dram shop cases. The defendants are the owner and the permittee respectively of the Mardi Gras Cafe, formerly known as the Grandfather’s Clock Cafe, located in Hartford.

On the evening of August 11,1978, Richard Swanson, upon leaving the defendants’ cafe, drove his car into a motorcycle occupied by the two plaintiffs, causing very serious injuries. The main issue at trial was whether Swanson was served alcohol at the defendants’ cafe while he was intoxicated. Both Swanson and the barmaid, Joan Hall, denied that he was so served, although there was evidence that he was intoxicated when he left the cafe. It was conceded that Swanson and Hall had been close friends for a period of years.

Swanson testified that he was sober when he entered the bar. The barmaid testified that Swanson ordered a drink, but was served a soda instead because he appeared intoxicated. It was alleged that Swanson became irate and refused the soda. There was also testimony that Swanson was intoxicated at the time of the accident, only minutes after leaving the defendants’ bar.

While charging the jury on the issue of inferences based upon disbelieved testimony, the trial court made the following statement: “Our Supreme Court in Novak versus Anderson [178 Conn. 506, 423 A.2d 147 (1979)] once said this: while it is true that it is within the province of the jury to accept or reject a person’s testimony, a jury in rejecting such testimony cannot conclude the opposite is true. A jury cannot from a disbelief of a person’s testimony infer that the plaintiff’s allegation is correct. In other words, you may disbelieve the testimony of any witness you want in whole or in part, but just disbelieving that witness’ testimony does not mean necessarily that the opposite is true.” The defendants alleged that this statement was contradictory and misleading and requested a clarification on the issue. The court refused to clarify further its instructions. The jury thereafter found for the plaintiffs. The defendants moved to set aside the verdict and for a judgment notwithstanding the verdict on the basis of the insufficiency of the evidence and the allegedly improper instruction. These motions were denied.

The defendants claim on appeal that it was error to instruct the jury that if they disbelieved a witness’ testimony, it “does not mean necessarily that the opposite is true.” (Emphasis added.) What the defendants seek to do is lift one word from the charge, the term “necessarily,” to establish that the trial court committed error. This they cannot do. Herb v. Kerr, 190 Conn. 136, 138, 459 A.2d 521 (1983); Foote v. Brown, 81 Conn. 218, 226-27, 70 A. 699 (1908). “ ‘[A] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statements but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case; Amato v. Desenti, 117 Conn. 612, 617, 169 A. 611 [1933].’ State v. Harris, 172 Conn. 223, 226, 374 A.2d 203 (1977). The charge should be examined to see whether it fairly presents the case to the jury so that no injustice is done under the rules of law to the legal rights of the defendant.” State v. Williams, 182 Conn. 262, 268, 438 A.2d 80 (1980). An examination of the charge discloses that it was “correct in law, adapted to the issues and sufficient for the guidance of the jury.” Castaldo v. D’Eramo, 140 Conn. 88, 94, 98 A.2d 664 (1953); State v. Rodgers, 198 Conn. 53, 56, 502 A.2d 360 (1985); Patrick v. Burns, 5 Conn. App. 663, 671, 502 A.2d 432 (1985). A microscopic examination of a charge is discountenanced by an appellate court. State v. Mastropetre, 175 Conn. 512, 524, 400 A.2d 276 (1978); State v. Lopez, 5 Conn. App. 599, 604, 502 A.2d 418 (1985).

The second claim of error is that the court’s refusal to set aside the judgment and render a judgment notwithstanding the verdict was error because there was insufficient evidence to support the verdicts. The correctness of the trial court’s action must be tested by the evidence most favorable to the plaintiffs. See Tomczuk v. Alvarez, 184 Conn. 182, 185, 439 A.2d 935 (1981); Feir v. Hartford, 141 Conn. 459, 463, 106 A.2d 723 (1954); Patrick v. Burns, supra, 665.

Viewing the testimony in this light, in support of the verdict as we must, the jury could reasonably have believed Swanson’s testimony that he was not intoxicated when he entered the cafe. There was conflicting evidence as to when Swanson entered the cafe, but the jury could reasonably have believed that he entered as early as 9:30 p.m., in view of the testimony of Joan Hall that he entered anywhere between 9:30 and 10 p.m. Upon leaving the cafe, he got into his car and proceeded down Franklin Avenue. At approximately 10:22 p.m., while only a block or two from the cafe, his vehicle struck the plaintiffs. There was substantial evidence that Swanson was intoxicated at the scene of the accident.

The jury was entitled to draw reasonable inferences in support of its verdict. If they believed Swanson walked into the cafe at 9:30 p.m. and was not intoxicated and emerged at approximately 10:20 p.m. and was intoxicated, they could reasonably have inferred that he had been served alcohol in the defendants’ bar while he was intoxicated. The very nature of the Dram Shop Act is such that in many cases it is difficult to sustain the burden of proof by direct evidence. In most instances, the burden of proof is met by circumstantial evidence. Pierce v. Albanese, 144 Conn. 241, 256, 129 A.2d 606 (1957). As the court said in Pierce: “To say that the proof must show by direct evidence that [the intoxicated person] ordered the beer and paid for it is to insist upon a refinement which would make the statute practically inoperative under the circumstances.” Id., 258; see Staples v. Lucas, 142 Conn. 452, 457, 115 A.2d 337 (1955). The court went on to state that “it is difficult to establish by direct or testimonial evidence, that is, by witnesses who state facts which came under their personal observation, precisely to whom the intoxicating beverage was sold and that the purchaser of it was already intoxicated when he bought it. See 1 Wigmore, Evidence (3d Ed.) p. 399. . . . Difficulty in securing testimonial evidence does not, however, excuse the necessity of proof sufficient to establish a case. It compels, rather, a resort to the establishment, by direct testimonial evidence, of circumstances from which logical and reasonable inferences of other material facts can be fairly drawn. In a civil case, ‘proof of a material fact by inference from circumstantial evidence need not be so conclusive as to exclude every other hypothesis. It is sufficient if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact.’ Dickson v. Yale University, 141 Conn. 250, 253, 105 A.2d 463 [1954] . . . .” Pierce v. Albanese, supra, 255-56.

The jury is free to believe a part of what a witness testified and disregard other portions of his testimony. The jury was free to draw logical and reasonable inferences from the evidence. As long as rational minds could draw such inferences, the court cannot upset the verdicts of the jury. Lemmon v. Paterson Construction Co., 137 Conn. 158, 162, 75 A.2d 385 (1950); Ropiak v. O’Leary, 38 Conn. Sup. 597, 599-600, 456 A.2d 1215 (1982) . There was evidence to support the conclusion that Swanson was intoxicated while at the cafe and evidence from which the jury could infer that he was served liquor.

In the case of Balboni v. Stonick, 2 Conn. App. 523, 481 A.2d 82 (1984), this court reversed the trial court’s ruling setting aside a verdict and directed judgment for the defendant upon the verdict, stating that, “[i]t is the province of the jury to determine the credibility of the witnesses and the weight to be accorded their testimony. Trzcinski v. Richey, 190 Conn. 285, 298, 460 A.2d 1269 (1983). Accordingly, the evidence offered at trial must be given the most favorable construction to which it is reasonably entitled in support of the verdict. Herb v. Kerr, 190 Conn. 136, 140, 459 A.2d 521 (1983) . While the ruling of the trial court on a motion to set aside a verdict is entitled to great weight because of the court’s familiarity with the facts and circumstances of the case; Nielson v. D’Angelo, 1 Conn. App. 239, 244, 471 A.2d 965 (1984); the parties are entitled to have issues upon which fairminded persons may differ decided by the jury.” Balboni v. Stonick, supra, 529-30; Patrick v. Burns, supra, 666.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 30-102 provides in pertinent part: “If any person, by himself or his agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages to the person injured, up to the amount of twenty thousand dollars, or to persons injured in consequence of such intoxication up to an aggregate amount of fifty thousand dollars, to be recovered in an action under this section, provided the aggrieved person or persons shall give written notice to such seller within sixty days of the occurrence of such injury to person or property of his or their intention to bring an action under this section.”

       The trial court gave the following charge during its instructions to the jury:
      “Circumstantial evidence is perfectly good evidence that you may consider as well as direct evidence. You may draw inferences from such evidence, if such inferences are fairly presented by the evidence in the case. Not every fact can be proved by direct evidence or eyewitnesses and, so, therefore, facts must sometimes be proved by indirect evidence which we call circumstantial evidence. You’re entitled to draw inferences if they are proper inferences from the evidence you have heard here under oath through the exhibits or through the testimony of witnesses, provided that you’re not guessing or falling back upon surmise or conjecture. There must be a proper inference to be drawn from the evidence and not something outside of the courtroom.
      “As I may have said before, the law is concerned with reasonable probabilities and not with mere possibilities.”

       While the memorandum of decision denying the defendants’ motion to set aside the verdicts and for judgment notwithstanding the verdict states that “[i]f the cases had been tried to the court, judgments would have been entered for the defendants,” such a statement is irrelevant to this appeal.

       The defendants’ attorney objected to the word “necessarily” in the jury instruction. He claimed that “[i]t implie[d] . . . that although the jury may not necessarily conclude the opposite is true, in fact, they might possibly conclude the opposite is true . . . .” He requested a clarification that “even if [the jury] disbelievefs] the entire testimony of a witness, they are not at liberty to conclude on that basis that the opposite is true.” We note that the court made a substantially identical instruction when it explained to the jury the import of Novak v. Anderson, 178 Conn. 506, 423 A.2d 147 (1979).

       The court charged the jury as follows: “So, there are really four elements to the case that must be proven, all of which must be proven. First of all, it must be proven by a fair preponderance of the evidence that a sale or service was made by the cafe or the bartender thereof, who is the agent of the defendants, to Mr. Swanson. That is a very crucial part of the case.
      “If you find no sale or service to Swanson by that cafe or its agents then the case fails. Secondly, it must be a sale of alcoholic liquor and not Coca Cola or Ginger Ale, of course, as we heard about in this case. Clearly, it must be made to an intoxicated person. . . .
      “So, the third requirement is that if they did sell or furnish liquor to Mr. Swanson, he must have been intoxicated at that time to impose liability upon them.
      “Fourthly, they must prove that as a result of such intoxication, the plaintiffs must prove that Swanson thereafter caused the injuries to the plaintiffs, Messrs. Milano and Drew.
      “So, those four requirements all of which must be satisfied are the crucial parts of the case. A sale or service to Swanson, he must have been drunk at the time, intoxicated at the time, there must have been alcoholic liquor, and as a consequence of that sale or service he must have gone out as a substantial factor of his intoxication causing injuries to Mr. Milano and Mr. Drew. So, that is the liability phase of the case which must be proven by a fair preponderance of the evidence, that burden being on the plaintiff to so prove.

      “Now, if you find that any one of those elements are lacking, have not been proven, then you must stop right there and render a verdict, defendants’ verdict in both cases. If you find that all four elements have been proven by a fair preponderance of the evidence, then you move on to discuss and assess damages.” (Emphasis added.)


text:
    Beverly Allen v. Northeast Utilities
    (4048)
    Dupont, C.'J., Spallone and Bieluch, Js.

      Argued December 3, 1985
    decision released March 18, 1986

      James A. Wade, with whom was Sally S. King and Sylvia Kemp-Orino, for the appellant (plaintiff).

      Trudie R. Hamilton, for the appellee (defendant).
   Spallone, J.

The plaintiff is appealing from the decision of the compensation review division of the workers’ compensation commission in which the review division affirmed the denial by the workers’ compensation commissioner of the plaintiff’s claim for survivor’s benefits and dismissed her appeal.

Paul Allen, the plaintiff’s husband, was an employee of the defendant at its Bantam hydroelectric facility. On Friday, September 26,1980, he arrived at work in time for his normal 7:30 a.m. to 4 p.m. shift. At about 11:45 a.m., he left his work station at the powerhouse with a fellow employee for a lunch break at the nearby Bantam Pub, which was located on Route 202 and was a three to five minute walk from the powerhouse. Paul Allen had lunch at the pub, during the course of which he consumed about six ten-ounce glasses of cream ale. His companion left the pub at about 12:30 p.m. and returned to the powerhouse. After receiving a phone call from his fellow employees, at about 2:30 p.m., informing him that his supervisors were inquiring of his whereabouts, he consumed two more ten-ounce glasses of cream ale and left the pub between 3:10 p.m. and 3:15 p.m. He did not return to his work station that day. He was never seen alive again and his body was found on the defendant’s premises the following Sunday. Although he had informed some people on Friday that he was already on vacation and would be needing his personal tools which were located in the powerhouse, his tools were found in the powerhouse and his car was found in the vicinity of the powerhouse on Sunday, September 25, 1980, the day his body was discovered.

At the Bantam facility there were two structures, a gatehouse near a dam on the Bantam River and a powerhouse situated to the west of and below the gatehouse. Connecting these structures was a large water pipe, called a penstock, about four feet in diameter, situated at an angle above the river area. Allen had utilized the penstock previously as a shortcut between the two structures. Adjacent to and north of the penstock was a wooded cliff area which angled downward toward the powerhouse. Allen’s body was found on the rocks below the penstock and the cliff, on the northside of the Bantam River. The blood traces on the rocks at the river bed revealed that Allen had moved about twenty-three feet from the point of impact, where he had fallen from above. Post-mortem tests showed that he had lived for some hours after the fall and that he was sober at the time of death. The time required for his system to metabolize the alcohol he had consumed at the pub was found to be approximately six hours after the final drink. The commissioner concluded that Allen’s death was not caused by an injury arising out of and in the course of his employment, which conclusion was affirmed by the review division. The plaintiff has now appealed to this court.

The plaintiff claims (1) that the commissioner erred in failing to apply the presumption that one charged with the performance of a duty and found injured at the place where that duty may have required him to be, is injured in the course of and as a consequence of his employment, (2) that the commissioner’s conclusion was inconsistent with the subordinate facts found, and (3) that the review division should have granted the plaintiff’s motion to strike all references in the defendant’s brief filed with the review division to facts and testimony not contained in the commissioner’s findings and award. We disagree.

Regarding the plaintiff’s first claim, we note that the presumption enunciated in Saunders v. New England Collapsible Tube Co., 95 Conn. 40, 43, 110 A. 538 (1920), that “[tjhere is a natural presumption that one charged with the performance of a duty, and found injured at the place where duty may have required him to be, is injured in the course of and as a consequence of the employment,” does not mandate that a particular conclusion be drawn by the trier. It is a rebuttable presumption of fact. Labbe v. American Brass Co., 132 Conn. 606, 612, 46 A.2d 112 (1946). “[Tjhe presumption is one resting on common experience and inherent probability which as such ceases to have force when countervailing evidence is produced, although the facts which gave rise to it remain in the case.” Labbe v. American Brass Co., supra, 611-12. The practical justification for such a presumption is grounded in a policy of fairness to the dependents of the deceased employee which arises from the realization that the death itself has removed the only possible witness who could prove the necessary causal connection between that individual’s death and his employment. See Larson, Workmen’s Compensation for Occupational Injuries and Death § 10.32 (1981).

The presumption operates to shift the burden of persuasion to the proponent of the invalidity of the presumed fact, “and that burden is met when, by the particular quantum of proof, the validity of the fact has been rebutted.” Anderson v. Litchfield, 4 Conn. App. 24, 28, 492 A.2d 210 (1985). The import of Saunders and its progeny leads to the conclusion that without evidence to the contrary, the fact that a person is found deceased at his or her place of employment will support a finding that the injury arose out of and was a consequence of the employment. See Labbe v. American Brass Co., supra, 611-12; Keeler v. Sears, Roebuck Co., 121 Conn. 56, 60-61, 183 A. 20 (1936); Judd v. Metropolitan Life Insurance Co., 111 Conn. 532, 536-37, 150 A. 514 (1930); Reeves v. Dady Corporation, 95 Conn. 627, 630-32, 113 A. 162 (1921); Saunders v. New England Collapsible Tube Co., supra, 43.

The plaintiff’s burden was to establish by competent evidence that the death for which compensation was sought arose out of and in the course of the employment. Saunders v. New England Collapsible Tube Co., supra, 42. Although she may have received the benefit of the presumption, the facts introduced by the defendant provide sufficient evidence from which the trier could reasonably conclude that the defendant satisfied its burden of proving the contrary, and we will not override the commissioner in deciding that factual issue. See Labbe v. American Brass Co., supra, 612.

The plaintiffs second claim is based on her contention that the conclusion drawn by the trier was not consistent with the subordinate facts. We find no merit to this claim.

The plaintiffs final claim is that the review division should have granted the plaintiffs motion to strike all references in the defendant’s brief filed with the review division to facts and testimony not contained in the commissioner’s findings and award.

We do not rule on whether the review division should have granted the plaintiff’s motion to strike all references in the defendant’s brief to facts and testimony not contained in the commissioner’s findings and award. The review division apparently never ruled on the motion. As the practice and procedure for workers’ compensation appeals to this court conform to the rules of practice governing other appeals to this court; Practice Book § 2015; the plaintiff was entitled to and indeed was under a duty to seek a ruling on the motion to strike and the reasons for the ruling. See Rahmati v. Mehri, 188 Conn. 583, 587-88, 452 A.2d 638 (1982); see also Practice Book §§ 2021 and 3082. The appellant must present a record which is adequate for appellate review. Kaplan v. Kaplan, 186 Conn. 387, 388 n.1, 441 A.2d 629 (1982); Holmes v. Holmes, 2 Conn. App. 380, 383, 478 A.2d 1046 (1984). Because the plaintiff has failed to provide such a record, we may decline to review her final claim of error. See Holmes v. Holmes, supra, 383-84.

We note further that the references contained in the defendant’s brief filed with the review division were made merely by way of example and explanation. The defendant did not seek to change or add to any of the commissioner’s findings, and it is clear that the review division’s decision was based solely upon and wholly adopted the commissioner’s finding and award.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 31-301b affords any party aggrieved by the decision of the compensation review division a direct appeal to the Appellate Court.


text:
    Rocklen’s Auto Parts & Service, Inc. v. Stanley Rakiec
    (4142)
    Dupont, C. J., Borden and Daly, Js.
    Argued February 18
    decision released March 18, 1986

      Howard A. Lawrence, for the appellant (defendant).

      Robert A. DeMarco, with whom, on the brief, was Geoffrey A. Hecht, for the appellee (plaintiff).
   Per Curiam.

Since the defendant failed to comply with the provisions of General Statutes § 52-212 and Practice Book § 377, the trial court was correct in refusing to grant the defendant’s motion to open the judgment by default.

There is no error.