author: Daly, J.

text:
    Leonard LaBieniec v. Gerald Baker et al.
    (4296)
    Dupont, C. J., Hull and Daly, Js.

      Argued February 10
    decision released June 9, 1987

      F. Timothy McNamara, for the appellant (plaintiff).

      Francis H. Morrison III, with whom, on the brief, was Daniel L. FitzMaurice, for the appellee (named defendant).

      James T. Graham, with whom, on the brief, was D. William White, for the appellee (defendant Robert Langmann).
   Daly, J.

This is a medical malpractice action brought by the decedent plaintiff against Gerald Baker, a radiologist, and Robert Langmann, an internist, both of whom failed to detect lung cancer in x-rays taken of the plaintiff during the course of a physical examination. In his complaint, the plaintiff alleged that the defendants’ failure to diagnose his lung cancer allowed the cancer to spread and grow (metastasize) to his brain. He further claimed that the delay caused him emotional distress and a decreased chance of survival.

At the close of the plaintiff’s case, the trial court directed a verdict for each of the defendants because there was insufficient evidence to establish that the oversight of the defendants was the proximate cause of any injury to the plaintiff. The plaintiff’s motion to set aside the verdict was denied. The basic issues in this appeal are whether the trial court erred (1) in concluding that expert medical testimony was required in order for the jury to consider the plaintiff’s claim of emotional distress and (2) in finding insufficient evidence to allow the case to go to the jury. We find no error.

The trial court found the following facts. On or about June 1, 1981, the plaintiff underwent a routine physical examination by Langmann. Chest x-rays were taken. Because the plaintiff did not properly fit the x-ray equipment and because the x-ray revealed an area of questionable haziness, the plaintiff was referred to Baker for further x-rays. Langmann informed Baker that the plaintiff had been, up until five years previously, a four to five pack a day cigarette smoker, but failed to mention the shadow on the x-ray. On or about June 10, 1981, Baker informed Langmann that the x-ray he took of the plaintiff was essentially negative. Langmann so informed the plaintiff.

On or about July 1, 1981, the plaintiff collapsed and was taken to Hartford Hospital where additional x-rays were taken. As a result, a biopsy was performed which indicated carcinoma of the lung. After a CAT scan, the plaintiff was also diagnosed as having an abnormal area of the brain. By mid-August this brain lesion was recognized as a metastasis from the lung cancer. The plaintiff underwent radiation treatment of both the lung and the brain.

While directed verdicts are not favored, they are justified if the evidence itself would require the jury, when acting reasonably and logically, to reach the conclusion embodied in the directed verdict. When reviewing the action of a trial court in directing a verdict and in refusing to set it aside, we must view the evidence in the light most favorable to the plaintiff. Boehm v. Kish, 201 Conn. 385, 388, 517 A.2d 624 (1986); Morales v. Trinity Ambulance Service, 9 Conn. App. 386, 388, 519 A.2d 90 (1986), cert. dismissed, 202 Conn. 806, 520 A.2d 1287 (1987).

It is a generally recognized rule in malpractice cases that a plaintiff must plead and prove not only that injury occurred and that the defendant was negligent, but also that the defendant’s negligence caused the injury. Katsetos v. Nolan, 170 Conn. 637, 654-55, 368 A.2d 172 (1976); Green v. Stone, 119 Conn. 300, 306, 176 A. 123 (1934); 61 Am. Jur. 2d, Physicians, Surgeons and other Healers § 329; annot., 13 A.L.R.2d 21; see Pisel v. Stamford Hospital, 180 Conn. 314, 340-42, 430 A.2d 1 (1980).

Medical malpractice actions involving diagnosis of cancer differ from other malpractice actions only factually. The legal analysis and elements remain the same. There are four essential elements to a malpractice action. They are: (1) the defendant must have a duty to conform to a particular standard of conduct for the plaintiff’s protection; (2) the defendant must have failed to measure up to that standard; (3) the plaintiff must suffer actual injury; and (4) the defendant’s conduct must be the cause of the plaintiffs injury. D. Wright & J. Fitzgerald, Torts § 88; 79 A.L.R.3d 915, 921; see Shelnitz v. Greenberg, 200 Conn. 58, 65, 509 A.2d 1023 (1986); Pisel v. Stamford Hospital, supra, 334; Shenefield v. Greenwich Hospital Assn., 10 Conn. App. 239, 248, 522 A.2d 829 (1987).

Thus, to be entitled to damages, the plaintiff must establish on the basis of reasonable medical probability the “necessary causal relation” between the failure of the defendants to diagnose the lung cancer and the injury the plaintiff claims to have suffered. See Shelnitz v. Greenberg, supra, 65-66, and cases cited therein; see generally Cross v. Huttenlocher, 185 Conn. 390, 394-95, 440 A.2d 952 (1981). This connection can not rest upon speculation or conjecture. Shelnitz v. Greenberg, supra, 66; Healy v. White, 173 Conn. 438, 443, 378 A.2d 540 (1977); Sheiman v. Sheiman, 143 Conn. 222, 225, 121 A.2d 285 (1956).

If a plaintiff is proximately harmed by a delay in a definitive diagnosis, a physician may be held liable. Schaecher v. Reinwein, 41 Ill. App. 3d 1055, 1058, 355 N.E.2d 351 (1976). In this case, the trial court found that “the evidence establishes malpractice on the part of each defendant in misreading the lung x-rays and the resultant delayed diagnosis of lung cancer. The core problem presented by the evidence, and lack of evidence, relates to the issue of causation.” Thus, we are concerned not with the issue of negligence, but whether the alleged malpractice was the proximate cause of any injury.

I

The plaintiff claims that the court erred in requiring expert medical testimony to prove mental distress. Underlying this claim is the plaintiffs assertion that the delay in diagnosing his cancer, and not the cancer itself, caused his mental anguish. The plaintiff asserted that his distress stemmed from his belief that, had he been diagnosed sooner, the cancer would not have metastasized to his brain, that his prognosis would have been better and that the outcome would have been different.

The plaintiff is correct that expert testimony is not required to prevail on a claim of mental suffering. Our Supreme Court has held that “[a] plaintiff may recover damages in a personal injury action for pain and suffering even when such pain and suffering is evidenced exclusively by the plaintiffs subjective complaints. Hook v. Dubuque, 153 Conn. 113, 115, 214 A.2d 376 (1965).” Delott v. Roraback, 179 Conn. 406, 409, 426 A.2d 791 (1980). This court has stated that “ ‘[w]e see no reason to subject a claim of mental suffering, which is ordinarily evidenced by subjective complaints, to a stricter scrutiny or greater care than a claim of physical suffering evidenced by the same type of complaints.’ ... A plaintiff need only establish a claim for mental or emotional distress by a fair preponderance of the evidence . . . . ” Buckley v. Lovallo, 2 Conn. App. 579, 589, 481 A.2d 1286 (1984). We agree that the plaintiff can prove the existence of mental distress without expert testimony. We note, however, that the plaintiff was required to prove his claim by a “fair preponderance” of the evidence. For the reasons set out in section II, we find that the trial court’s error in requiring expert testimony on this claim was harmless.

II

The second issue in this case is whether the trial court erred in concluding that there was insufficient evidence to allow the case to go to the jury. This issue has two parts, one relating to the claim of emotional distress, and the other relating to the claim of a decreased chance for successful treatment.

A

The trial court was correct in directing a verdict for the defendants on the claim of emotional distress. While it is possible that the plaintiff could have shown emotional distress without expert testimony, he failed to submit sufficient evidence of the proximate cause of the distress to allow the claim to go to the jury. The court found that the plaintiff’s belief that the delay in diagnosis detrimentally affected his prognosis was mistaken and was essentially unsupported by the evidence. Moreover, he failed to demonstrate that the delay and not the cancer itself caused the claimed emotional distress. In building a case for malpractice in general, the plaintiff called his treating oncologist, Robert S. Martin. On cross-examination, Martin testified that the cancer itself was the cause of the plaintiff’s emotional distress.

The only evidence that the delay and not the cancer was the cause of the emotional distress was testimony by the plaintiff. Aside from these statements, the remainder of the plaintiff’s testimony on mental distress really addressed his feelings about the disease itself rather than the delay. His wife testified that the plaintiff “thought that . . . if they had done work on him June 1 rather than waiting ... he would still be working and maybe it wouldn’t have metastasized as far up the brain as it did.” Yet, she also testified, in general, that “he’s not coping well at all” with his disease. Although not required, “ ‘medical science has unquestionably become sophisticated enough to provide reliable and accurate evidence on the causes of mental trauma.’ Culbert v. Sampson’s Supermarkets, Inc., 444 A.2d 433, 436 (Me. 1982).” (Emphasis added.) Buckley v. Lovallo, supra, 589. A claim of physical suffering can go to the jury only if the plaintiff produces sufficient evidence of the suffering and that the malpractice, within reasonable medical probability, was more likely than not the cause of the physical suffering. The same holds true for an emotional distress claim; a plaintiff must provide sufficient evidence of the distress and that the malpractice, within reasonable medical probability, was more likely than not the cause of the distress. In this case, the plaintiff did not prove causation. The jury therefore could not have found for him on this claim and it was proper for the trial court to direct a verdict. No matter how negligent a party may be, if his act bears no causal relation to the injury, it is not actionable. Kirby v. Spivey, 167 Ga. App. 751, 756, 307 S.E.2d 538 (1983). Since the plaintiff failed to establish the existence of emotional distress caused by the delay, rather than by the disease, the trial court did not err in directing a verdict on the emotional distress claim.

B

The plaintiff also claimed that the delay in diagnosis prevented the early removal of his lung or earlier treatment which decreased his chance for successful treatment. To prevail on this claim, a plaintiff must show (1) that he has in fact been deprived of a chance for successful treatment and (2) that the decreased chance for successful treatment more likely than not resulted from the defendant’s negligence. Gooding v. University Hospital Building, Inc., 445 So. 2d 1015, 1020 (Fla. 1984). “In other words, the plaintiff must show that what was done or failed to be done probably would have affected the outcome.” Id.

We find that the plaintiff failed to adduce evidence that he in fact suffered a decreased chance for successful treatment. Martin testified that the metastasis occurred sometime prior to July 1, and that “the chances are probably very good that it was there” in early June, 1981. Frederic Krauft, a treating radiologist, also testified that the brain lesion was present in early June 1981. Simon Berger, the plaintiff’s radiology expert, testified that metastasis occurred sometime during the month of June. Berger did not testify, however, that treatment following an earlier diagnosis could have prevented metastasis or increased the chance for successful treatment. Thus, there was no evidence for the jury to consider in support of the plaintiffs belief that an earlier diagnosis would have affected the course of treatment, or the course of the disease. “[Ajnxiety about a completely fictitious or imagined consequence, having no reasonable basis, is not a recoverable element.” Annot., 71 A.L.R.2d 338, 342 (1960).

' The plaintiff in this case failed to show that the delay in diagnosis caused him any injury. “The loss of a speculative chance of recovery alone is not an injury from which damages flow. We are convinced that the better rule to follow is the one which requires the plaintiff to prove that the defendants’ negligence in all probability, proximately caused the injury. Only by such proof will the plaintiff have proven proximate cause.” Cooper v. Sisters of Charity of Cincinatti, Inc., 27 Ohio St. 242, 252, 272 N.E.2d 97 (1971); Kirby v. Spivey, supra, 756; Mortensen v. Memorial Hospital, 105 App. Div. 2d 151, 157, 483 N.Y.S.2d 264 (1984); Hanselman v. McCardle, 27 S.C. 46, 48-49, 267 S.E.2d 531 (1980). “When dealing with death admittedly directly caused by cancer the jury cannot speculate on other causes that might have contributed to such death.” (Emphasis in original.) Grody v. Tulin, 170 Conn. 443, 450, 365 A.2d 1076 (1976). In Grody, the Supreme Court upheld the trial court’s directed verdict because the plaintiff failed to show that the defendant’s negligence, in all probability, caused the plaintiff any injury. The plaintiff in that case, as in this, failed to prove the injury, and therefore could not prove causation.

“ Tf the chain of causation . . . when traced from the beginning to the end, includes an act or omission which, even if wrongful or negligent, is or becomes of no consequence in the results or is so trivial as to be a mere incident of the operating cause, it is not such a factor as will impose liability for those results.’ ” Grody v. Tulin, supra, 448-49. Thus, if the failure to diagnose was of no consequence to, or was a mere incident to the course of the plaintiff’s treatment, such failure does not impose liability on the defendants. In analyzing whether the failure to diagnose was of consequence or was no more than an incidental factor, the trial court is to concern itself with reasonable probabilities and not possibilities. Budney v. Zalot, 168 Conn. 388, 388-89, 362 A.2d 861 (1975); Doyle v. Bussell, 5 Conn. App. 480, 482, 499 A.2d 1169 (1985).

Martin, when asked if he thought the metastasis in the brain had occurred by June 1, 1981, replied, “the chances are probably very good that it was there at that time.” He further testified that “this particular cancer . . . was a very slow growing tumor. And, probably the spread in the brain was growing at about the same rate as the spread in the lung, and the lung tumor had to occur before the spread to the brain happened, so that the whole thing probably happened sometime before one could even see it on an x-ray and before it grew large enough to be able to be picked up. And, probably the brain spread was there for quite some time . . . . ” Martin also testified that he did not think the plaintiff’s outcome would have been any different if the lung cancer had been detected in early June. Krauft testified in a similar fashion. Berger testified for the plaintiff that metastasis “occurred after that early June examination and before the one which was made in July . . . .” Berger did not testify however, as to whether the failure to diagnose had any impact on the plaintiffs treatment or outcome.

In this case, the evidence failed to remove the decreased chance of successful treatment theory from the realm of speculation. See Sochard v. St. Vincent’s Medical Center, 8 Conn. App. 6, 10-11, 510 A.2d 1367 (1986). In fact, two expert witnesses specifically testified that the delay in diagnosis made no difference whatsoever, that is, the plaintiffs chance at successful treatment had not, in fact, decreased. On this basis, the trial court concluded that the plaintiff failed to establish that the defendants’ alleged malpractice was the proximate cause of any decrease in his opportunity for successful treatment.

Since there was no evidence which could have led the jury to a reasonable inference that the defendants’ acts of malpractice were the direct and proximate cause of a decrease in the chance of successful treatment, it was proper for the trial court to direct a verdict on this issue.

On the basis of our review of the record, the transcripts, and the evidence in this case, we conclude that the trial court did not err in directing a verdict for the defendants and in denying the plaintiffs motion to set aside the verdict.

There is no error.

In this opinion the other judges concurred.

       Barbara N. LaBieniec, wife of the named plaintiff who died on October 9, 1986, was named executrix of his estate and was substituted as a party plaintiff. The term plaintiff as used in this opinion will refer to the decedent.

       Martin’s testimony included the following: “I think that my patient had a good deal of difficulty from the time this was diagnosed, as I think anybody would, with a lung cancer which is a rather threatening thing to have. And, that led to a whole lot of other changes in his life, which were also difficult for him to tolerate. And, the combination of all these, I think makes it understandable that he is depressed and having difficulty coping with all of these changes.”
      Further when asked “is it fair to say that you understand the problems he is having to arise from his difficulty coping with the cancer, as opposed to arising from any delay in the diagnosis of the cancer?” Martin replied: “I think it’s coping with the cancer and the effects of treatment and all of the things that changed his life as a result of these events.”

       “[I] felt if I had been told that I had some kind of funny spot on my lung when I had that [first] exam, I would have insisted on following up to find out what the thing was. I feel that we would have had that lung operation at that time and it would have never—the metastasis would never have happened .... That if I had been told that I had something on that lung at that examination, that I would have insisted on a biopsy to find out whatever it is. And that I would have had that operation and that I would be working today. It would have never went to the brain and that’s what bothers me.”

       During cross-examination, Martin testified as follows:
      “Q: Do you think that if the lung cancer had been detected or suspected on June 10, 1981, as opposed to July 2nd, do you think that his outcome would be any different today from what you have just told me?
      A: No. No, probably not.”

       The testimony of Krauft included the following:
      “Q: All right. Now Doctor, in terms of yourself as a treating physician for Mr. LaBieniec, was the fact that the abnormality in the lung, the x-ray, was not interpreted on June 10,1981 in that x-ray but was not interpreted until July of 1981, later, did that have any consequence in your view as a treating physician in the treatment—the course of treatment that you and your collegues decided upon for him?
      “A: No.
      “Q: All right .... Let’s assume that the abnormality was interpreted, was picked up on the June 10,1981 x-ray instead of the July 1,1981 x-ray, okay. In your view as a treating physician, did that have any impact at all, any material impact on Mr. LaBieniec’s outcome as a patient?
      “A: No.
      “Q: In other words, Doctor, from your point of view, to the extent that you know of his care and treatment and to the extent that you saw him, he was not any different or any worse off because of the fact that that abnormality was not picked up on June 10 but was picked up on July 1?
      “A: No, and the reason I say that is because I feel professionally he had the tumor in his brain at that time in June.
      “Q: And Doctor, what you’re telling the ladies and gentlemen is that you feel that the brain tumor was present in his brain as of June 10, 1981?

        “A: Yes.
      “Q: And Doctor, is that opinion based upon your experience and your training and your practice in your field as a lung doctor over the years?
      “A: Yes. It’s not unique to being a lung physician. I would say it’s unique to being a physician and what I understand about cancer and how it behaves.
      “Q: And Doctor, is what you have just told us, the fact that not picking up or interpreting that abnormality on June 10 but picking it up on July 1, that that didn’t have any impact either on Mr. LaBieniec’s treatment or on his outcome, is that something that you told him at any time?
      “A: Yes.”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Linus Sanstrom, Jr., et al. v. Hugh S. Strickland et al.
    (4835)
    Dupont, C. J., Hull and Daly, Js.
    Submitted on briefs February 9
    decision released May 27, 1987

      Michael F. Dowling and Jule A. Crawford filed a brief for the appellants (plaintiffs).

      Charles M. Rice, Jr., filed a brief for the appellees (defendants).
   Per Curiam.

This court previously dismissed this case as untimely in Sanstrom v. Strickland, 10 Conn. App. 166, 523 A.2d 507 (1987). Upon reconsideration, we find that the appellants timely sought and were granted an extension of time during which to file an appeal. Thus, the appeal is timely, and we will address its merits. Giordano Construction Co. v. Ross, 182 Conn. 577, 579, 438 A.2d 772 (1980). This opinion therefore supersedes the previous opinion issued in this case.

The plaintiffs appeal from the trial court’s discharge of a lis pendens which had been filed against real property owned by the defendants pursuant to General Statutes § 52-325. We find no error.

The plaintiffs alleged that they had farmed the land of the defendants’ decedent (Harold L. Strickland), for several years under a lease. Upon the death of the decedent, the plaintiffs were asked to vacate the premises. They instituted an action claiming that the decedent had promised that the land would be preserved as farmland, would not be sold and would ultimately belong to the plaintiffs. The plaintiffs also alleged breach of an oral lease, unjust enrichment and the existence of a constructive trust.

On January 6, 1986, after a hearing held in accordance with General Statutes § 52-325a, the trial court found no probable cause on any of the plaintiffs’ claims to sustain the lis pendens and granted the defendants’ motion to discharge it.

At such a hearing, the plaintiff is initially required to establish probable cause to sustain the validity of his claims. General Statutes § 52-325b (a); see e.g. Stratton v. Ward, 39 Conn.Supp. 195, 474 A.2d 113 (1983). This probable cause hearing is not a trial on the merits, nor is it intended as such. The plaintiff need not establish his claim by a preponderance of the evidence. The court, while not making a final decision on the merits, weighs the testimony given and the documentary proof presented. The trial court’s duty is to weigh the probabilities based on the facts and to exercise its broad discretion in determining whether there is probable cause to sustain the lis pendens. Williams v. Bartlett, 189 Conn. 471, 483, 457 A.2d 290 (1983); Michael Papa Associates v. Julian, 178 Conn. 446, 447, 423 A.2d 105 (1979); Cavallo v. Lewis, 1 Conn. App. 519, 520, 473 A.2d 338 (1984).

The appellate standard of review of a trial court’s decision has been consistently and clearly enunciated. In the absence of clear error, we will not overrule the trial court which is in a much better position than we are to weigh the credibility of at least some of the witnesses, and to assess the possible legal issues which may arise. Augeri v. C. F. Wooding Co., 173 Conn. 426, 429, 378 A.2d 538 (1977); Smarz v. Chabot, 6 Conn. App. 7, 10, 502 A.2d 443 (1986). The credibility of the witnesses is a matter specifically for the trial court. B. Holden & J. Daly, Connecticut Evidence § 125 (a).

After the probable cause hearing, the trial court characterized the named plaintiff’s testimony as “self-serving declarations” and therefore gave it little weight. Further, the court had before it a lease, which the plaintiffs claimed was evidence of the agreement between the plaintiffs and the decedent. The lease, however, was unsigned by either the plaintiffs or the decedent.

After carefully reviewing the record and the action of the trial court, we find no error in its conclusion that there was insufficient evidence to justify a finding of probable cause.

There is no error.

       Nancy Sanstrom is also a plaintiff in this case.

       The named defendant and the codefendant Edward G. Birdsey are sued individually and as the coexecutors of the estate of Harold L. Strickland, and trustees of a trust for the benefit of Harold L. Strickland.


author: Bieluch, J.

text:
    Richard Blue et al. v. Shirley Ann Boroughf
    (4962)
    Bobden, Spallone and Bieluch, Js.

      Submitted on briefs February 2
    decision released June 9, 1987

      Jeffrey D. Ginzberg and Arnold, M. Potash filed a brief for the appellant (defendant).

      Robert P. Hanahan filed a brief for the appellees (plaintiffs).
   Bieluch, J.

The defendant appeals from the trial court’s judgment rendered for the plaintiffs in this action for tortious interference with a real estate contract. The defendant submits the following two claims for our consideration: (1) whether the trial court erred in concluding that the defendant must indemnify the plaintiffs in the amount of $937 for damages which they agreed to pay by stipulated judgment in a prior related action; and (2) whether the trial court erred in admitting evidence of condominium carrying costs as proof of the amount of damages where the plaintiffs were unavailable as witnesses. We find no error.

The following is a summary of the facts as found by the trial court. In October, 1983, the plaintiffs entered into a written agreement for the sale of their condominium to Janice Guglielmetti for $68,000, said transfer to close on December 31,1983. The agreement provided that the plaintiffs could continue to market the condominium unit in the meantime, but if they received a better purchase offer, Guglielmetti would have a right of first refusal at the greater price. Such right had to be exercised “within 72 hours of notification of any competing offer.”

On December 3,1983, the defendant offered to purchase the condominium for $70,000. The purchase and sale agreement, drafted by the defendant’s attorney, expressly provided that it was subject to the right of first refusal held by Guglielmetti. Upon the acceptance of this purchase offer, the defendant obtained oral permission to occupy the then vacant unit, again subject to Guglielmetti’s right of first refusal. The defendant agreed to vacate the premises in the event Guglielmetti agreed to purchase the unit at the defendant’s price. The defendant moved into the condominium. Within the time limited, Guglielmetti matched the defendant’s proposal. Guglielmetti’s offer was accepted and a closing date set. The defendant, however, refused to vacate as agreed and continued her occupancy beyond the scheduled closing. She was subsequently evicted after a summary process action instituted by the plaintiffs.

Guglielmetti was unable to obtain occupancy until July 21, 1984, because of the defendant’s refusal to vacate the premises as agreed by her with the plaintiffs. Because of the plaintiffs’ postponement of the transfer and occupancy caused by the defendant, Guglielmetti sued the plaintiffs for resulting damages. That litigation resulted in a stipulated judgment for Guglielmetti to recover damages in the amount of $3222.

The plaintiffs sued the defendant in this action for tortious interference with a contract, seeking compensation for damages incurred as a result of the defendant’s wrongful refusal to vacate the condominium. The case was tried to the court and judgment was rendered for the plaintiffs in the amount of $3917.

The defendant’s first claim is that the trial court erred in concluding that she was legally bound to indemnify the plaintiffs for damages of $937 which they undertook to pay by stipulated judgment in the suit brought by Guglielmetti. The basis of her claim is that she was not afforded an opportunity to participate in the action settled between Guglielmetti and the plaintiffs, thereby discharging any obligation to indemnify the plaintiffs. See Fairfield v. D’Addario, 149 Conn. 358, 362-63, 179 A.2d 826 (1962). The defendant’s claim of error misconstrues the nature of the plaintiffs’ action. Their claim was for tortious interference with a contract. The damages sought by the plaintiffs were based on the expenses they incurred as a consequence of the defendant’s tortious conduct. See footnote 1, supra. From the pleadings here, it is clear that the principle of indemnification was never presented to the trial court and its judgment was not founded upon that basis. As we have previously stated, we decide appeals on the theories as presented to and decided by the lower court. See Practice Book § 4000; L. F. Pace & Sons, Inc. v. Travelers Indemnity Co., 9 Conn. App. 30, 36 n.5, 514 A.2d 766, cert. denied, 201 Conn. 811, 516 A.2d 886 (1986). The basis of the defendant’s first claim of error has no legal relevancy to an action for tortious interference with a contract. We need not, therefore, review this claim further.

The defendant’s second claim is that the trial court erred in admitting into evidence, over the defendant’s objection, the testimony of the plaintiffs’ attorney as to the amount of carrying charges incurred on account of the delayed closing caused by the defendant’s refusal to vacate the unit by the agreed date. The defendant characterizes this testimony as inadmissible hearsay, alleging that the lawyer’s knowledge could not have been obtained without talking to the plaintiffs. We find this argument unpersuasive.

From the record, it is apparent that the amounts testified to by the plaintiffs’ counsel were not based upon the out of court statements of a third party. See State v. Packard, 184 Conn. 258, 274, 439 A.2d 983 (1981) (defining hearsay evidence). To the contrary, it is clear that his testimony was based upon his own knowledge of such costs as the agent responsible for the management and sale of the plaintiffs’ condominium after the plaintiffs moved to California. The carrying costs incurred by the plaintiffs were paid by the witness from his trustee account. His testimony, therefore, was not based upon the statements of a third party, but rather upon his own direct knowledge of such costs paid by him from his checking account. Cf. Lentine v. McAvoy, 105 Conn. 528, 532, 136 A. 76 (1927) (doctor’s testimony as to amount and date of patient’s payment was inadmissible hearsay where he had no direct knowledge of the payment). The trial court, therefore, did not err in admitting his testimony.

There is no error.

In this opinion the other judges concurred.

       The stipulated judgment in Guglielmetti’s action against the plaintiffs was in the amount of $3222. Of this amount, the trial court assessed as damages against the defendant only the following items thereof: (1) the plaintiffs’ expenditure for child care expenses incurred by Guglielmetti in the amount of $320; and (2) the plaintiffs’ expenditure for moving and storing expenses paid to Guglielmetti in the amount of $617.


author: Berdon, J.

text:
    John Falcone v. Night Watchman, Inc., et al.
    (4044)
    Spallone, Bieluch and Berdon, Js.
    Argued March 10
    decision released June 9, 1987

      Susan M. Cormier, with whom was Wesley W. Horton, for the appellant (defendant Zbigniew Rozbicki).

      William C. Franklin, for the appellee (plaintiff).
   Berdon, J.

The defendant Zbigniew Rozbicki appeals from the judgment of the trial court awarding the plaintiff damages in the amount of $11,005.22 (which sum includes interest in the amount of $2728.57) for goods sold and delivered. The trial court found for the plaintiff on the two independent grounds that the debt due for the goods sold and delivered was a primary undertaking by the defendant Rozbicki to which the statute of frauds does not apply, and that the corporation was the alter ego of the defendant Rozbicki, requiring that its corporate veil be pierced. Since we find no error in the trial court’s conclusion that the corporate entity should be disregarded in order to impose personal liability on the defendant Rozbicki, it will not be necessary to review the claims of error in regard to the cause of action alleging that the debt was his primary obligation.

The plaintiff was a supplier of wholesale fruit and other produce. He commenced his action against the defendants, Night Watchman, Inc., and Rozbicki. Prior to trial, the corporate defendant entered into a stipulation providing for judgment in favor of the plaintiff.

The defendant Rozbicki is the sole stockholder of the defendant Night Watchman, Inc., and a practicing lawyer. The defendant corporation operated a restaurant and in January, 1980, its chef arranged with the plaintiff to purchase and have delivered to the restaurant fruits and other produce on a daily basis.

When it came to the plaintiff’s attention that he was not being paid, he contacted the defendant Rozbicki. The defendant Rozbicki orally promised that he would assume the financial responsibility for the produce delivered to the restaurant, and this promise was repeated on several occasions. When the restaurant ceased doing business, Rozbicki denied that he was personally liable for the purchase of the produce, claiming that the purchase was a corporate debt of the defendant Night Watchman, Inc.

Generally, a stockholder is not liable for the debts of the corporation. “Courts will, however, disregard the fiction of a separate legal entity to pierce the shield of immunity afforded by the corporate structure in a situation in which the corporate entity has been so controlled and dominated that justice requires liability to be imposed on the real actor.” Saphir v. Neustadt, 177 Conn. 191, 209, 413 A.2d 843 (1979). The piercing of the corporate veil is equitable in nature. Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., 187 Conn. 544, 555, 447 A.2d 406 (1982). “ 'When the statutory privilege of doing business in the corporate form is employed as a cloak for the evasion of obligations, as a mask behind which to do injustice, or invoked to subvert equity, the separate personality of the corporation will be disregarded.’ Mull v. Colt Co., 31 F.R.D. 154, 166 (S.D.N.Y. 1962).” DeMartino v. Monroe Little League, Inc., 192 Conn. 271, 275, 471 A.2d 638 (1984). Under Connecticut law, the corporate shield may be disregarded either under the “instrumentality” or “identity” rules.

The trial court relied upon the “identity” rule which has been stated in Zaist v. Olson, 154 Conn. 563, 576, 227 A.2d 562 (1967) as follows: “ ‘If plaintiff can show that there was such a unity of interest and ownership that the independence of the corporation had in effect ceased or had never begun, an adherence to the fiction of separate identity would serve only to defeat justice and equity by permitting the economic entity to escape liability arising out of an operation conducted by one corporation for the benefit of the whole enterprise.’ Mull v. Colt Co., [supra, 163], Walkovszky v. Carlton, 24 App. Div. 2d 582, 583, 262 N.Y.S.2d 334.” A key factor in making a determination of whether the corporate shield should be disregarded is the degree of control or influence exercised over the corporation by the individual sought to be held liable. Christian Bros., Inc. v. South Windsor Arena, Inc., 7 Conn. App. 648, 651, 509 A.2d 1095 (1986).

Although the identity rule “primarily applies to prevent injustice in the situation where two corporate entities are, in reality, controlled as one enterprise because of the existence of common owners, officers, directors or shareholders and because of the lack of observance of corporate formalities between the two entities”; Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., supra, 560; the rule may also be employed in an appropriate case to hold an individual liable. Saphir v. Neustadt, supra, 209-10; Zaist v. Olson, supra, 575.

In making our determination whether the trial court’s conclusions were legally and logically correct, were based upon factual findings that were supported by the evidence and were not clearly erroneous; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980); we do not retry the facts. Jones v. Litchfield, 1 Conn. App. 40, 42, 467 A.2d 936 (1983), cert. denied, 192 Conn. 802, 470 A.2d 1218 (1984). We are, however, not unmindful that the corporate shield should not be lightly disregarded to hold a stockholder liable, even when, as in the present case, there is but one stockholder. “To do so would be to act in opposition to the public policy of this state as expressed in legislation concerning the formulation and regulation of corporations.” Saphir v. Neustadt, supra, 212.

The trial court concluded that the defendant “The Night Watchman, Inc., was merely the alter ego of Mr. Rozbicki. There was such a unity of interest and ownership between Mr. Rozbicki and the corporation that the interests of justice will be served only by disregarding the shield of the corporate structure.” The facts the court found to support these conclusions were that the defendant Rozbicki owned 100 percent of the stock, the only directors and officers were salaried employees at his law office, the defendant Rozbicki established policy for the corporation and its restaurant and that policy was implemented by his law office manager without corporate compensation, the corporation owned no assets and the defendant Rozbicki provided, rent free, the building, the land, the tables, the dishes, the equipment and all other articles necessary for the corporation to operate its restaurant business. Although a separate corporate checking account was maintained for the payment of the debts incurred by the restaurant, it was clear that the corporate account was “bankrolled” by the defendant Rozbicki from his personal funds by covering its checks. Minutes were not kept of corporate meetings, the records of the corporation did not acknowledge the loans from Rozbicki, proper records were not kept of the corporation’s funds and annual reports were not filed by the corporation until after the business had closed and a claim had been brought against Mr. Rozbicki to hold him personally liable. Furthermore, he had assumed the debt due to the plaintiff and assured him that he would pay it from his personal assets. Indeed, the trial court found that “at one point he told the plaintiff that he was expecting to settle some legal cases soon and he would pay him at such time as he received his legal fees therefrom.”

There are no hard and fast rules for determining when the corporate veil should be disregarded. “ ‘The circumstances which have been considered significant in an action to disregard the corporate entity have rarely been articulated with any clarity. Perhaps this is true because the circumstances necessarily vary according to the facts of the particular case. Therefore, each case in which the issue is raised should be regarded as sui generis, to be decided in accordance with its own underlying facts. Since the issue is thus one of fact, its resolution is particularly within the province of the trial court and such resolution will be regarded as presumptively correct and will be left undisturbed on appeal unless it is clearly erroneous.’ (Footnotes omitted.) 1 Fletcher, Cyc. Corp. (Perm. Ed. 1981 Sup.) § 41.3, p. 38.” Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., supra, 556 n.7. In this case, it is clear that the defendant Rozbicki completely dominated the corporation which owned no assets, that the corporation was able to operate the restaurant only as a result of the assets made available by Rozbicki, and that Rozbicki promised the plaintiff creditor that he would be responsible for the debt owed to him by the corporation. These facts found by the trial court fully support its conclusions that there was such a unity of interest and ownership between both these defendants that the independence of the defendant Night Watchman, Inc., had in effect ceased or never existed and that justice and equity require the corporate shield to be disregarded in order to impose personal liability on the defendant Rozbicki.

There is no error.

In this opinion the other judges concurred.

       The remaining error assigned in this case is that the trial court refused to find admitted as facts all the requests for admission of facts filed by the defendant Rozbicki. They were denied by the plaintiff, but his answer was filed four days after the 30 days required under § 239 of the Practice Book. The short answer to this claim is that none of the alleged facts in the requests for admission was claimed for the count under which the plaintiff seeks to pierce the corporate veil. More important, for the defendant to have taken advantage of any admission, these requests and answers (if any) must be introduced into evidence, which was not done in this case. 8 C. Wright & A. Miller, Federal Practice and Procedure § 2264 (1970). Otherwise, the party against whom the admissions are to be used would not have an opportunity to test their evidentiary competence or to illuminate their significance. S. Kemble Fischer Realty Trust v. Board of Appeals, 9 Mass. App. 477, 479, 402 N.E.2d 100, cert. denied sub nom. Costello v. Board of Appeals, 449 U.S. 1011, 101 S. Ct. 566, 66 L. Ed. 2d 468 (1980). In this case the defendant merely objected to the introduction of evidence that contradicted the claimed admissions.

       “ ‘The instrumentality rule requires, in any case but an express agency, proof of three elements: (1) Control, not mere majority or complete stock control, but complete domination, not only of finances but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; (2) that such control must have been used by the defendant to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or a dishonest or unjust act in contravention of plaintiff’s legal rights; and (3) that the aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of.” (Emphasis added.) Saphir v. Neustadt, 177 Conn. 191, 209, 413 A.2d 843 (1979).

       The domination over the policy of the corporation existed even though its bylaws designated officers and functions of said officers. “Using a nominee to perform the duties of officer and director is quite unlike using a nominee to hold title to shares equitably owned by the nominor, a practice which, if not common is not uncommon in business practice and may be dictated by legitimate business or personal needs. Unlike shareholders, officers and directors even of a closely held corporation have statutory and fiduciary duties incident to their offices which cannot be delegated. See generally 3 Fletcher, Cyc. Corp. (Perm. Ed. 1975 Rev.) § 990.” Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., 187 Conn. 544, 569, n.3, 447 A.2d 406 (1982) (Borden, J., dissenting).

       The defendant Rozbicki argues that the facts found by the court are incorrect in two instances. First, he attacks the factual basis for the Court finding that “[m]inutes were not kept of corporate meetings.” In view of the minutes of the meeting from April 1980 to September 1981, which were made exhibits, it is obvious the court had reference to the period prior to April 1980. Second, Rozbicki challenges the court’s finding that he made the loans without any acknowledgement from the corporation. The minutes of the meeting that he relies upon merely state that funds are needed from the defendant Rozbicki and that if such funds are made available they would be recognized as a corporate debt. The minutes do not state that funds were advanced or the amount advanced.


text:
    State of Connecticut v. Theodore N. Lenczyk
    (4608)
    (4609)
    Hull, Borden and Spallone, Js.
    Argued April 8
    decision released June 9, 1987

      Richard R. Brown, with whom was Steven W. Varney, for the appellant (defendant).

      Michael O’Hare, assistant state’s attorney, with whom, on the brief, was Raymond Wiezalis, former assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant was arrested and charged with a series of offenses relating to the possession of controlled substances. On October 8, 1985, the state announced in open court that it was entering a nolle on all counts. Upon this announcement, the defendant moved to dismiss some of the counts. The court denied the motion, and the defendant has appealed, claiming a violation of his rights under General Statutes §§ 54-56 and 54-56b.

Because more than thirteen months have passed since the nolles were entered, the erasure provisions of General Statutes § 54-142a apply to this case. This statute requires that all criminal records of a nolled charge be erased after thirteen months from the entry of the nolle. General Statutes § 54-142a (c). The statute also prohibits the court clerk or any other person controlling the records from disclosing any information regarding the erased charge. General Statutes § 54-142a (e). The statute further provides that: “Any person who shall have been the subject of such erasure shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.” Id. General Statutes § 54-142a therefore prevents the state from reactivating the nolled charges in this case and places the defendant in essentially the same position as he would be in had the court granted his motion to dismiss. In light of the present posture of this case, it would be academic for us to decide whether the trial court erred in refusing to grant the motion to dismiss.

“It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” State v. Macri, 189 Conn. 568, 569, 456 A.2d 1203 (1983). Where the question presented is purely academic, we must refuse to entertain the appeal. Connecticut Foundry Co. v. International Ladies Garment Workers Union, 177 Conn. 17, 19, 411 A.2d 1 (1979).

The appeal is dismissed.

       The defendant did not seek in the trial court to have the charges dismissed with prejudice. Had the defendant sought and the court granted such relief, the state would be precluded from prosecuting the defendant for the same offense or offenses. Practice Book § 819. The granting of a motion to dismiss without prejudice, however, does not preclude the state from charging the defendant in a new information with the same offenses within the applicable statute of limitations. Id. Under the present posture of this case, the defendant is essentially in the same position as he would be in had the court dismissed the charges without prejudice. See Practice Book § 727.


author: Hull, J.

text:
    Gerrety Company, Inc. v. Louis W. Palmieri et al.
    (4611)
    Hull, Borden and Spallone, Js.

      Argued April 9
    decision released June 9, 1987

      Joseph Chiarelli, for the appellant (named defendant).

      Joseph Glass, for the appellee (plaintiff).
   Hull, J.

The plaintiff lumber company brought suit against the defendant seeking to recover for goods sold and delivered. The defendant counterclaimed for damages resulting from the installation of allegedly defective materials. After a trial to a jury, the plaintiff was awarded damages on his complaint and the defendant was awarded damages on his counterclaim. The court granted the plaintiff’s motion to set aside the verdict for the defendant, and rendered judgment for the plaintiff on both the complaint and the counterclaim. The court denied the defendant’s motions to set aside the verdict for the plaintiff and to reinstate the verdict in his favor on the counterclaim. From that judgment, the defendant appeals, claiming that the court erred (1) in allowing the jury verdict to stand and rendering judgment in favor of the plaintiff when the sole evidence introduced was that the goods in question were defective, (2) in leading the jury to believe that it was deciding the complaint and counterclaim in conjunction with one another and then only retaining a portion of the verdict, (3) in requiring proof of diminution in value of the property as the sole standard to prove damages, (4) in requiring evidence of the change in valuation of the property in addition to the cost of repair and the cost of the goods installed, and (5) in refusing to allow the defendant to offer evidence of a change in value of the premises.

The jury could reasonably have found the following facts. While he was constructing his home, the defendant purchased from the plaintiff “% inch tongue in groove” plywood for the subfioor of the house. The defendant noticed that some of the plywood delaminated, and notified the plaintiff. The defendant refused the plaintiff’s offer to replace the % inch plywood with Yi inch plywood, but accepted a subsequent offer of % inch plywood. The plaintiff also supplied all materials for installation free of charge. The defendant then laid the % inch plywood over the % inch plywood, despite the “bumps and waviness” in the floor. The floor buckled after the defendant laid tile and hardwood over the subfloor, causing damage to the tile and wood.

The defendant stated that he had no choice but to cover the existing plywood with % inch plywood, as the door and window heights had already been established. He testified at trial, however, that % inch plywood over the existing plywood would have solved the problems he encountered. He testified further that it was not economically feasible to replace the floor entirely after it had been laid.

At trial, after defense counsel ended his direct examination of the defendant, the presiding judge met in chambers with both counsel. He discussed settlement with them and informed defense counsel that he had failed to introduce necessary evidence of diminished value of the house. When court reconvened, defense counsel moved to reopen his direct examination. The court sustained the plaintiffs objections to the motion. On redirect examination, the plaintiffs objection to defense counsel’s profferred testimony was again sustained. No evidence of the diminished value of the house was ever introduced.

I

The defendant’s first claim is that the court erred in allowing a jury verdict to stand and rendering judgment for the plaintiff. His third claim is that the court erred in requiring proof of diminution in value of the property as the sole standard to prove damages. His fourth claim is that the court erred in requiring evidence of the change in valuation of the property in addition to the cost of repair and the cost of the goods installed. His fifth claim is that the court erred in refusing to allow the defendant to offer evidence of a change in value of the premises. As these four claims are related, we will address them together.

Our role in reviewing the respective granting and denying of the motions to set aside the verdicts in this action is limited. The ruling of the trial court on a motion to set aside the verdict, because of its familiarity with the facts, is entitled to great weight. Hearl v. Waterbury YMCA, 187 Conn. 1, 3, 444 A.2d 211 (1982); Vazzano v. Slater, 6 Conn. App. 1, 4, 502 A.2d 440 (1986). “The trial court has the inherent power to set aside a jury verdict which, in the court’s opinion, is either against the law or the evidence. Maltbie, Conn. App. Proc. § 181.” O’Brien v. Seyer, 183 Conn. 199, 208, 439 A.2d 494 (1981). Our standard of review is therefore whether the court’s action constituted a “clear abuse of discretion.” Id.; Labatt v. Grunewald, 182 Conn. 236, 240, 438 A.2d 85 (1980). Similarly, “[t]he trial court’s refusal to set aside a verdict is entitled to great weight and its decision will not be disturbed on appeal unless the court clearly abused its discretion.” Ryan v. Mill River Country Club, Inc., 8 Conn. App. 1, 4, 510 A.2d 462 (1986).

“The general rule of contract damages is that the injured party should be placed in a position he would have been in had the contract been fully performed . . . . In Levesque v.D & M Builders, Inc., 170 Conn. 177, 365 A.2d 1216 (1976), however, the court adopted the rule that limits such damages involving real property to the diminished value of the property whenever the cost of restorations is dramatically larger than is the difference in value. The purpose of this rule is to avoid unreasonable economic waste. Id., 181.” Spera v. Audiotape Corporation, 1 Conn. App. 629, 633, 474 A.2d 481 (1984). The burden is on the claimant to present evidence which affords a reasonable basis for measuring loss. Id., citing Ferri v. Pyramid Construction Co., 186 Conn. 682, 691, 443 A.2d 478 (1982).

In the present case, the defendant in effect testified that the cost of restorations would be dramatically larger than the difference in value, and that it would not be economically feasible to make the restorations. He was therefore precluded from utilizing the cost of repairs as a possible assessment of damages. Further, as the cost of repairs must be calculated as of the date of breach; Spera v. Audiotape Corporation, supra; and the defendant presented evidence only of the cost at the time of trial, which was approximately six years later, his evidence would have been of little value even if it had been economically feasible to make repairs. Thus, the court did not abuse its discretion in concluding that evidence of diminution in value of the house was essential to the plaintiffs case.

The defendant did not present any testimony during his case in chief as to the diminution of value of the house. He attempted to reopen his case only after the court alerted him to the defect in his case. Whether a trial court will permit further evidence to be offered after the close of a party’s case-in-chief is a matter resting within its sound discretion. Poly-Pak Corporation of American. Barrett, 1 Conn. App. 99, 104, 468 A.2d 1260 (1983), citing State v. Holmquist, 173 Conn. 140, 152, 376 A.2d 1111, cert. denied, 434 U.S. 906, 98 S. Ct. 306, 54 L. Ed. 2d 193 (1977); see also Hauser v. Fairfield, 126 Conn. 240, 242, 10 A.2d 689 (1940); 2 E. Stephenson, Connecticut Civil Procedure (2d Ed.) § 210e. As the defendant had been given a full and fair opportunity to present his case, we conclude that the court did not abuse its discretion in not allowing him to reopen his examination after being alerted of his omissions.

We conclude that the court did not abuse its necessarily broad discretion in setting aside the defendant’s verdict and upholding the plaintiffs verdict. That action was reasonable in light of the defendant’s failure to address the issue of damages adequately. Regardless of evidence presented that the goods were defective, the plaintiff did not provide the jury with a sufficient basis upon which to award him damages.

With respect to his second claim of error, the plaintiff cites no case or authority which recognizes error in retaining a portion of the verdict and rejecting a portion of the verdict on the ground that the jury had performed a “balancing” of the verdicts. As we have no adequate briefing of this issue, the claim is therefore not reviewable. Griffin v. Muzio, 10 Conn. App. 90, 94, 521 A.2d 607 (1987).

There is no error.

In this opinion the other judges concurred.

       In the original complaint, both Louis Palmieri and his wife Marcia were party defendants. During the course of the trial, the plaintiff withdrew the complaint against Marcia Palmieri. The term defendant, as used herein, will refer to Louis Palmieri.

       Although this case does concern the sale of goods, and is therefore covered by Article 2 of the Uniform Commercial Code, neither party addressed their claim as such. We decide cases upon the grounds they were decided in the trial court. L.F. Pace & Sons, Inc. v. Travelers Indemnity Co., 9 Conn. App. 30, 51, 514 A.2d 766 (1986). We consequently will not consider the issues under the UCC.


author: Spallone, J.

text:
    William D. Shea v. Donald M. Paczowski et al.
    (5125)
    Dupont, C. J., Hull and Spallone, Js.
    Submitted on briefs April 27
    decision released June 9, 1987

      James A. Armentano filed a brief for the appellants (defendants).

      Kimberly A. Knox and Susan M. Cormier filed a brief for the appellee (plaintiff).
   Spallone, J.

The defendants are appealing from the decision of the trial court setting aside the jury verdict as inadequate and ordering a new trial unless the defendants filed an additur with the court.

In this action to recover damages for personal injuries sustained in a motor vehicle accident, the jury returned a verdict for the plaintiff in the amount of $1640. The trial court, upon motion of the plaintiff, set aside the verdict as inadequate and ordered a new trial on the issue of damages only, unless the defendants filed with the court an additur in the amount of $7060. Although the trial court, in its memorandum of decision filed in response to the plaintiffs motion for additur, mentioned that a juror appeared to be asleep during the court’s instructions on damages, the court took no action at that time and the plaintiff made no effort to disqualify the juror. We will not consider this factor as being pertinent to our analysis of the claims of error made in this case.

We hold that the trial court erred in setting aside the jury verdict. There is nothing in the record, exhibits and evidence to justify the court’s conclusion that the verdict in this case so shocked the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption. Briggs v. Becker, 101 Conn. 62, 66-67, 124 A. 826 (1924). The verdict should be “disturbed only by considerations of the most persuasive character, as where the verdict shocks the sense of justice or the mind is convinced that it is in fact entirely disproportionate to the injury. [Maltbie] Conn. App. Proc., p. 151.” Mulcahy v. Larson, 130 Conn. 112, 114, 32 A.2d 161 (1943). The evidence offered at trial “must be given the most favorable construction to which it is reasonably entitled in support of the verdict . . . . ” Josephson v. Meyers, 180 Conn. 302, 313, 429 A.2d 877 (1980). Only under the most compelling circumstances may the court set aside a jury verdict because to do so interferes with a litigant’s constitutional right in appropriate cases to have issues of fact decided by a jury. Bambus v. Bridgeport Gas Co., 148 Conn. 167, 169, 169 A.2d 265 (1961). The amount of damages to be awarded is a matter particularly within the province of the jury. Fox v. Mason, 189 Conn. 484, 489, 456 A.2d 1196 (1983); Kiniry v. Danbury Hospital, 183 Conn. 448, 461, 439 A.2d 408 (1981). The jury determines credibility and the effect to be given the testimony. Gallo v. Gallo, 184 Conn. 36, 38, 440 A.2d 782 (1981); State v. Grant, 177 Conn. 140, 142, 411 A.2d 917 (1979). It is the jury’s right to consider evidence, draw logical deductions and make reasonable inferences from facts proven. State v. Schoenbneelt, 171 Conn. 119, 126, 368 A.2d 117 (1976); Dacey v. Connecticut Bar Assn., 170 Conn. 520, 540, 368 A.2d 125 (1976). It may accept or reject the testimony of any witness; Zarembski v. Three Lakes Park, Inc., 177 Conn. 603, 608, 419 A.2d 339 (1979); and determine the weight to be given the evidence. Angelica v. Fernandes, 174 Conn. 534, 535, 391 A.2d 167 (1978). This is true whether the testimony is that of laypersons or experts.

It is not necessary for us to recite with particularity the facts of this case except insofar as they assist our legal analysis. On the basis of the evidence, the jury could have found a permanent partial disability of 5 percent of the plaintiff’s neck, or it could have found no permanent partial disability of the neck. The jury could have found that the plaintiff experienced pain for a minute, a week or a month, or the jury could have found that the plaintiff experienced no pain. The jury could have found that the plaintiff had prior continuing problems with his neck, or the jury could have found no such problems. There is evidence to support any of the above alternatives depending upon the degree of credibility, weight, acceptance or rejection afforded the testimony by the jury. Nothing in the evidence can support the trial court’s conclusion that the jury’s award did not fall somewhere between the necessarily uncertain limits of just damages or that the verdict so shocked the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corrution. Zarrelli v. Barnum Festival Society, Inc., 6 Conn. App. 322, 327, 505 A.2d 25, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986). The record in this case did not disclose, as it must to support the action of the trial court in ordering an additur, that any such partiality, prejudice, mistake or corruption was apparent. Martino v. Palladino, 143 Conn. 547, 549, 123 A.2d 872 (1956); see also Lee v. Lee, 171 Conn. 1, 3, 368 A.2d 11 (1976).

The plaintiff’s reliance on Zarrelli is misplaced. That case involved a death and the valuation to be placed on a young human life. A death had in fact occurred and no jury reasonably could have found that the person involved had not died. In this case, there was no death or any lesser objectively ascertainable catastrophic injury. Furthermore, a parsimonious jury award is not inadequate as a matter of law. Sepe v. Deemy, 9 Conn. App. 524, 531, 520 A.2d 237 (1987). The action of the trial court in this case intruded upon and usurped the function of the jury.

There is error, the case is remanded with direction to vacate the order of the trial court setting aside the verdict and ordering a new trial unless the defendants filed an additur, and to reinstate the verdict of the jury and to render judgment in accordance therewith.

In this opinion the other judges concurred.


author: Borden, J.

text:
    State of Connecticut v. Michael Daley
    (5217)
    Hull, Borden and Bieluch, Js.
    Argued May 5
    decision released June 9, 1987

      Timothy C. Moynahan, with whom, on the brief, were Charles E. Oman and Cynthia J. Clancy, certified legal intern, for the appellant (defendant).

      Marcia B. Smith, assistant state’s attorney, with whom, on the brief, was John A. Connelly, state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction, after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70, sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (2), and risk of injury to a minor in violation of General Statutes § 53-21. The dispositive issue is whether the admission of evidence, without objection by the defendant, under the constancy of accusation doctrine is reviewable under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). We conclude that it is not, and we find no error.

The victim was the defendant’s twelve year old daughter. She testified to a series of sexual assaults committed upon her by the defendant which took place on an afternoon in June, 1985. After her testimony, the victim’s school principal and the investigating police officer both testified, without objection by the defendant, to the victim’s statements to them describing the sexual assaults.

The defendant’s sole claim on appeal is that the admission of the testimony of the school principal and the police officer went beyond the scope of the complainant’s testimony with respect to the details of the assault in violation of his fundamental constitutional right to a conviction upon proper evidence by an impartial jury. We agree with the state that this claim is not reviewable.

Evidence of constancy of accusation is admissible in a sexual assault case. State v. Dabkowski, 199 Conn. 193, 197, 506 A.2d 118 (1986). We need not resolve the question, suggested by the defendant and by Professors Tait and LaPlante, of whether constancy of accusation evidence is substantive evidence of guilt admissible under an exception to the hearsay rule, or is simply evidence corroborative of the victim’s testimony analogous to a prior consistent statement and relevant only to her credibility. See C. Tait & J. LaPlante, Connecticut Evidence (1986 Sup.) § 11.22, pp. 173-75. If the evidence is hearsay introduced as substantive evidence, that status alone is insufficient to establish that its admission amounts to a constitutional violation. “[HJearsay claims do not automatically invoke constitutional rights to confrontation.” State v. Veal, 201 Conn. 368, 376, 517 A.2d 615 (1986). If it is simply corroborative evidence admitted only on the issue of the victim’s credibility, we fail to see a fundamental constitutional violation in its admission into evidence, and the defendant has failed to persuade us that one exists. The defendant’s claim seeks to tag a nonconstitutional claim with a constitutional label. State v. Veal, supra, 376.

There is no error.

In this opinion the other judges concurred.

       Indeed, the defendant has presented no analysis suggesting why his claim is reviewable under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

       We note that, although our Supreme Court in State v. Dabkowski, 199 Conn. 193, 506 A.2d 118 (1986), referred to the constancy of accusation doctrine as an “exception to the hearsay rule”; id., 197; it also explained that such evidence is admissible “ ‘ “in order to corroborate [the victim’s] testimony.” ’ ” Id., 199. Professors Colin Tait and Joseph LaPlante have, with some accuracy, pointed out the inconsistency between these two statements. See C. Tait & J. LaPlante, Connecticut Evidence (1986 Sup.) § 11.22, pp. 173-75.


text:
    State of Connecticut v. Curtis Hardy
    (5312)
    Dupont, C. J., Borden and Spallone, Js.
    Argued May 8
    decision released June 9, 1987

      Michael K. Courtney, deputy assistant public defender, for the appellant (defendant).

      Mary Elizabeth Bar an, deputy assistant state’s attorney, with whom, on the brief, was Walter D. Flanagan, state’s attorney, for the appellee (state).
   Per Curiam.

The defendant appeals from the judgment of conviction, after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70.

In the defendant’s first claim of error, he asserts that the trial court erred by denying his supplemental motion to suppress because he was not promptly arraigned in accordance with General Statutes § 54-lc and General Statutes (Rev. to 1985) § 54-lg.

The defendant was placed under arrest at 7:11 a.m. on September 19,1985. The defendant was arraigned on the next regularly scheduled court date, September 20, 1985. In State v. Darwin, 155 Conn. 124, 133-34, 230 A.2d 573 (1967), rev’d on other grounds, 391 U.S. 346, 88 S. Ct. 1488, 20 L. Ed. 2d 630 (1968), our Supreme Court rejected a claim of untimely arraignment under circumstances nearly identical to those in this case. See also State v. Vollhardt, 157 Conn. 25, 39, 244 A.2d 601 (1968). The trial court, in refusing to suppress the defendant’s statements, properly applied the holding in Darwin.

The defendant’s second claim is that his constitutional right to confront adverse witnesses was violated. He claims that the trial court erred in not making a preliminary finding that the failure to produce privileged information contained in the psychiatric records of the victim-witness would be likely to impair the defendant’s right to confrontation. State v. Esposito, 192 Conn. 166, 176-80, 471 A.2d 949 (1984). Such a finding could not have been made on the facts of this case.

Here, the defendant not only failed to show that the witness had a mental problem that affected her testimonial capacity, he did not even establish that the witness was under psychiatric care or that any psychiatric records existed. See State v. Burak, 201 Conn. 517, 523-24, 518 A.2d 639 (1986); State v. Bruno, 197 Conn. 326, 329-30, 497 A.2d 758 (1985); cert denied, 475 U.S. 1119, 106 S. Ct. 1635, 90 L. Ed. 2d 181 (1986); State v. Esposito, supra. Further, at oral argument in this court defense counsel admitted that, prior to trial, he made no effort to secure the psychiatric records, if any, of the victim-witness, nor, at trial, did he ask for a continuance to do so. We cannot convert the defendant’s default in this regard into error. See State v. Davis, 10 Conn. 130, 133, 521 A.2d 1051 (1987).

There is no error.

       At the time the defendant filed his supplemental motion to suppress, General Statutes § 54-lc provided: “Any admission, confession or statement, written or oral, obtained from an accused person who has not been presented to the first session of the court, or on the day specified for arraignment under the provisions of section 54-lg, or who has not been informed of his rights as provided by section 54-lb or section 54-64b, shall be inadmissible.”

       At the time the defendant filed his supplemental motion to suppress, General Statutes (Rev. to 1985) § 54-lg provided: “Any arrested person who is not released sooner shall be promptly presented before the superior court sitting next regularly for the geographical area where the offense is alleged to have been committed. If an arrested person is hospitalized, or has escaped or is otherwise incapacitated, the person shall be presented, if practicable, to the first regular sitting after return to police custody.”


text:
    Stuart W. Cohen v. Carol D. Cohen
    (4785)
    Hull, Borden and Spallone, Js.
    Argued April 9
    decision released June 16, 1987

      Wesley W. Horton, with whom, on the brief, was Ruth Dreyfus, for the appellant (plaintiff).

      Robert M. Wechsler, with whom was Michael Jon Barbarula, for the appellee (defendant).
   Hull, J.

The sole issue in this appeal is the adequacy of the evidentiary underpinning of the trial court’s award of periodic alimony to the defendant. The court’s finding of operative facts and its conclusions follow.

The parties were married in 1970 and have one child, Julie, born March 30,1973. The defendant is forty years old and has suffered from multiple sclerosis since 1975. She is deteriorating physically and mentally to the extent that she is unable to care for herself and will in the future be unable to care for herself or engage in any occupation. Her parents have come from their Florida home to assist her. Because of their age, they will be unable to continue this care and the defendant will require a live-in or full time helper.

The plaintiff is a well educated man, thirty-nine years old. He holds an executive position with Xerox Corporation where he has been employed for sixteen years. His present base salary with bonus is $96,000 per year. He has profit sharing and savings plans in the company, stock incentive programs and investments in stocks and limited partnerships. The child is living with the plaintiff and being supported by him. The defendant intends to relocate in Florida near her parents’ home. The plaintiff holds funds in trust for the minor child, which should secure her education. He will receive her social security payments toward her support, and he has a disability income plan with his company. The defendant has no security for the future.

The court made certain orders which are not at issue in this case. The plaintiff on appeal claims only that the court’s second order was an abuse of the court’s discretion. That order provided: “Plaintiff will pay to defendant $45,000 per year as alimony in monthly installments of $3750 commencing January 1, 1986 until the wife’s death or remarriage or the death of the husband, whichever event shall first occur. This award may be modified in the event of any subsequent change in the wife’s medical situation or the needs created thereby.”

The plaintiff moved the court to articulate further its decision as follows: (1) by articulating the basis on which the court ordered that the defendant receive $45,000 per year in alimony; (2) by articulating the amount that the court expects the plaintiff will have to expend annually for support of the minor child; and (3) by articulating the amount that the court expects the defendant will have to expend annually for live-in or full time help.

The court filed a memorandum of decision in response to the plaintiff’s motion as follows: “As to Paragraph 1: The court found that plaintiffs earnings from his company for the last year totalled $96,000, that defendant was incapable of earning anything since she suffered from totally delibitating Multiple Sclerosis and would likely in the future have increasing living expenses. Defendant shows in her affidavit of October 4, 1985 the need for $5482.95 a month including $2500 a month for Home/Health Aid. There is no question that defendant requires such aid and perhaps more, but the court saw fit to reduce the claim for the present but noted in its decision that it may require modification if the medical situation of the wife changes. Since defendant is permanently disabled, the alimony award was not limited in time.

“As to Paragraph [2] The court was not requested to find an amount that plaintiff would have to spend annually for support of the minor child. He will have, however, realized on the court’s award of alimony the sum of $45,000 per year plus $4752 from Social Security Disability payments which he will receive as custodian of the child and which alone should provide ample funds for her support. There are also custodial funds of $30,000 set aside for her education.

“As to Paragraph [3] The defendant offered evidence as to Home/Health Aid to substantiate her claim for $2500 per month. The court made no finding as to the exact amount required but reduced defendant’s claim by $1700 in the alimony award with the finding that this award may be modified in the event of subsequent change in the wife’s medical situation. Since defendant is moving to Florida and her expenses there may differ from the expenses in Connecticut, such modification should be applied for.”

The plaintiff claims that the item of $2500 per month for home health care was based on double hearsay and essentially worthless evidence, so that the periodic alimony order which was substantially based on this item yvas an abuse of discretion.

The evidence concerning home health care costs originated in footnote 4 to the defendant’s affidavit of October 4, 1985, which provides: “The expense shown for home health aids is predicated upon survey of five institutions providing similar services within lower Fair-field County. A survey of those institutions indicates that the service can be provided either on an hourly cost with the range being a minimum of $8.00 to a maximum quoted of $13.60/hour. In addition, inquiry was made concerning the cost of a full time live-in home health aid on a 7 day a week 24 hour basis. Care provided in such a manner was quoted at a minimum of $600 per week to a maximum of $665 per week. The amount shown herein on the affidavit is based upon costs as derived from the aforesaid survey. At the present time these services are being rendered by the defendant’s parents, and the amount shown is to demonstrate the defendant’s coverage through medicare and medicaid. The services contemplated by the above expenditure are not predicated upon skilled nursing care. Services for skilled nursing care would be an extra cost and may be partially covered by insurance.” The affidavit was signed by the defendant’s seventy-six year old father, Leo Soled.

Soled testified that he never made inquiries as to that amount and that the defendant’s attorney and his associate made the inquiries. Soled stated that the affidavit “still doesn’t mean a damn thing to me.” The court ruled that the case should be determined on the costs in Connecticut rather than Florida. There was no other evidence about the cost of home health care in Connecticut.

The admissibility of footnote 4 of the Soled affidavit was never specifically ruled upon by the court, nor was it offered as an exhibit. The plaintiff did not ask that the item be stricken or disregarded by the court.

The plaintiff makes various attacks on certain of the evidence supporting the alimony award. These require no discussion. We have carefully considered all such claims and find that the facts found and conclusions reached on such supporting underlying evidence were made within the court’s necessarily broad discretion in domestic matters. Kaplan v. Kaplan, 185 Conn. 42, 44, 440 A.2d 252 (1981).

Thus, the plaintiff’s claim essentially boils down to this. The $3750 monthly alimony award can only be sustained if there is evidence to support at least a substantial portion of her $2500 per month claim for home health care. The plaintiff claims that the only evidence on this subject, which was contained in footnote 4 of the defendant’s affidavit of December 4,1983, as commented upon by Soled’s testimony, was worthless double hearsay. The plaintiff relies principally on the case of Marshall v. Kleinman, 186 Conn. 67, 438 A.2d 1199 (1982).

In Marshall, the plaintiff appealed to the Supreme Court from an order of the Probate Court ordering the defendant conservator to sell certain real estate owned by his ward. The Superior Court upheld the order of sale, and the plaintiff appealed to the Supreme Court claiming that the sale was not in the best interests of the estate because the sale price did not reflect the fair market value of the property. The Supreme Court stated that the trial court, in discharging its affirmative duty to preserve and protect the ward’s assets, should satisfy itself that the factual foundation is “not built on quicksand.” Id., 70. The defendant’s appraisal value of the land ordered to be sold was affected by the appraiser’s belief that the use of at least one half of the property was regulated under the Inland Wetlands and Water Courses Act. The plaintiff’s appraiser evaluated the land at a much higher figure since he believed that the act did not affect the property. The court concluded that the wide discrepancy between the appraisals clearly depended on each appraiser’s opinion as to whether the land was in fact subject to wetlands restrictions. The defendant’s appraiser relied upon his experience with other land in the area and on a discussion with the town assessor which gave him the general impression that approximately one half of the property was subject to the act. The plaintiff’s appraiser based his evaluation on the national soil map and on his familiarity with the soil. Neither appraiser examined the town map which was recorded in the town hall. In a 3-2 decision, the Supreme Court concluded that the trial court erred in deciding a critical issue in the case “on the basis of testimony with little probative worth.” Id., 73.

In analyzing the plaintiff’s claim in this case, we note that, as in Marshall v. Kleinman, supra, no objection of any kind was made to the information in footnote 4 of the defendant’s affidavit or to Soled’s testimony concerning it. “The plaintiff challenges the court’s finding by arguing that much of the evidence admitted and considered by the trial court was hearsay. This claim is both untimely and addressed to the wrong forum. Practice Book § 3063 [now § 4185]; Aetna Life & Casualty v. Miscione of Connecticut, Inc., 193 Conn. 435, 437, 476 A.2d 577 (1984). The plaintiff did not object to the introduction of the evidence. Hearsay evidence admitted because no objection was voiced can be considered to prove the matters in issue for whatever its worth on its face. Sears v. Curtis, 147 Conn. 311, 317, 160 A.2d 742 (1960).” Derderian v. Derderian, 3 Conn. App. 522, 528, 490 A.2d 1008, cert. denied, 196 Conn. 810, 811, 495 A.2d 279 (1985).

In addition, the plaintiffs claim of insufficiency of supporting evidence not objected to runs athwart the key role of affidavits in dissolution cases. A court is entitled to rely upon the truth and accuracy of sworn statements required by Practice Book § 463. Jucker v. Jucker, 190 Conn. 674, 677, 461 A.2d 1384 (1983); Casanova v. Casanova, 166 Conn. 304, 305, 348 A.2d 668 (1974). These sworn statements have great signficance in domestic disputes in that they serve to facilitate the process and avoid the necessity of testimony in public by persons still married to each other regarding the circumstances of their formerly private existence. Jackson v. Jackson, 2 Conn. App. 179, 188, 478 A.2d 1026, cert. denied, 194 Conn. 805, 478 A.2d 710 (1984). The significance of the unique role of affidavits in such cases is underscored in this case by the defendant’s total disability due to multiple sclerosis. The defendant in this case chose to rely on double hearsay to establish a key element in her case. The plaintiff, however, chose to do nothing concerning the infirmities of this evidence. We look to the plain error rule in Practice Book § 4185 for analogy. For, were we to examine, other than sparingly, the evidentiary underpinnings of a court’s judgment in a case such as this, we would encourage such a trial by ambush and unnecessarily exacerbate the already lacerated equilibrium of the personal lives involved.

We must, however, make such an inquiry. The general rule is lucidly stated in C. McCormick, Evidence (3d Ed.) § 54 as follows: A “failure to make a sufficient objection to evidence which is incompetent waives any ground of complaint as to the admission of the evidence. But it has another effect, equally important. If the evidence is received without objection, it becomes part of the evidence in the case, and is usable as proof to the extent of the rational persuasive power it may have. The fact that it was inadmissible does not prevent its use as proof so far as it has probative value. The incompetent evidence, unobjected to, may be relied on in argument, and alone or in part may support a verdict or finding. This principle is almost universally accepted. . . . The principle applies to any ground of incompetency under the exclusionary rules. It is most often invoked in respect to hearsay, but it has been applied to evidence vulnerable as secondary evidence [such as] writings, opinions, evidence elicited from incompetent witnesses or subject to a privilege, or subject to objection because of the want of authentication of a writing, of the lack-of-knowledge qualification of a witness, or of the expertness qualification. Relevancy and probative worth, however, stand on a different footing. If the evidence has no probative force, or insufficient probative value to sustain the proposition for which it is offered, the want of objection adds nothing to its worth and it will not support a finding. It is still irrelevant or insufficient.” (Footnotes omitted.)

“Evidence admitted without objection remains evidence in the case subject to any infirmities due to any inherent weaknesses. Danahy v. Cuneo, 130 Conn. 213, 217, 33 A.2d 132 (1943). The trier may not, however, rely only on hearsay evidence which is lacking in rational probative force. See New Haven v. Public Utilities Commission, 165 Conn. 687, 723, 345 A.2d 563 (1974).” Marshall v. Kleinman, supra, 72.

The issue, then, is the probative worth of Soled’s statement in his affidavit concerning nursing home costs. We conclude that the information in the affidavit is sufficiently probative to support the court’s order of periodic alimony. It furnishes strong specific detail. It does not contain material that would shock the trier or assail his common sense. It specifically notes that the amount shown for home health care is meant only to demonstrate the defendant’s needs. It does not claim to be an exact statement of her needs at the time of trial.

A cursory examination of Connecticut precedent buttresses our conclusion. The evidence was “available for whatever it was worth upon its face.” State v. Segar, 96 Conn. 428, 437, 114 A. 389 (1921). In Danahy v. Cuneo, supra, a statement by the defendant father and owner of the car involved in an accident to the plaintiff’s mother not to spare any expense for her injured son, although not objected to, was found to be not competent evidence that the driver was operating the car as a family car. The lack of relevance or probative force of such a statement is self-evident. In Tragakiss v. Dowling, 183 Conn. 72, 74, 438 A.2d 818 (1981), the court stated, however, that “Danahy in no way undermines the rule that when hearsay testimony is admitted without objection, the trier of fact may accord the testimony whatever credence it is worth.” “A material fact cannot be said to have been found without evidence if there is some testimony in its support— although slight—and none to the contrary.” (Emphasis added.) Meagher v. Colonial Homes Co., 109 Conn. 343, 348, 146 A. 609 (1929).

Finally, Marshall v. Kleinman, supra, is distinguishable from the facts of this case. The gravamen oí Marshall was that the ‘testimony with little probative worth” concerned the nub of the case. In this case, the trial court stated specifically that it did not rely on the $2500 per month figure in reaching its conclusion. In fashioning its equitable formula for determining its financial orders, the court stated that it was deducting $1700 per month from the $2500 per month figure. It made evident its awareness of the evidential infirmities in the plaintiffs survey of nursing home costs. The $800 per month figure which the court factored into its orders was thus a much less significant part of the $3750 monthly alimony than was the key appraisal testimony in Marshall v. Kleinman, supra. The court specifically noted that the alimony order may be modified as the defendant’s circumstances may change.

The evidential underpinnings of the court’s order were adequate. The court did not abuse its wide discretion in its judgment. “ ‘[T]he power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage.’ ” Rubin v. Rubin, 7 Conn. App. 735, 745, 510 A.2d 1000 (1986); Pasquariello v. Pasquariello, 168 Conn. 579, 585, 362 A.2d 835 (1975).

There is no error.

In this opinion the other judges concurred.

       The court is in error in referring to the plaintiffs realization of $45,000 per year. Since the court found that the plaintiff’s salary with bonus is $96,000 per year, and the alimony payment is $45,000 per year, this figure should have been $51,000.

       We attach no significance to the fact that the defendant’s father signed the affidavit rather than the defendant. It is undisputed that the defendant was totally disabled and not familiar with or able to manage her own financial affairs.

       Practice Book § 463 provides in relevant part: “At the time a motion concerning alimony, support or custody is filed, or at the time a dissolution of marriage, legal separation or annulment action is claimed for a hearing, that moving party shall file a sworn statement . . . of current income, expenses, assets and liabilities . . . .”

       Practice Book § 4185 provides in relevant part that this court “may in the interests of justice note plain error not brought to the attention of the trial court.” For a discussion of the plain error rule in this context see C. McCormick, Evidence (3d Ed.) § 52, p. 134.