text:
    Michael J. Paranko v. State of Connecticut
    (12631)
    Peters, C. J., Shea, Santaniello, Callahan and Moraghan, Js.
    Argued February 11
    decision released May 27, 1986

      Robert B. Teitelman, assistant attorney general, with whom were Charles A. Overend, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, and Robert E. Walsh, assistant attorney general, for the appellant (state).

      Jeffrey W. Hill, with whom, on the brief, was Thomas B. Wilson, for the appellee (plaintiff).
   Santaniello, J.

The principal issue raised on this appeal is whether, under the specific terms of a collective bargaining agreement between the state and an employee union, General Statutes § 52-410 grants an individual union member standing to bring an action to compel the state to submit to arbitration. The plaintiff, Michael J. Paranko, an employee of the state and member of the Protective Services Employees Coalition IUPA/IAFF, AFL-CIO (union), brought an action in the Superior Court against the state to compel arbitration of a grievance. The complaint alleged that he had been unfairly demoted and that the union had refused to submit his grievance to arbitration. Relying on the terms of a collective bargaining agreement between the state and the union, he requested that the grievance be submitted to arbitration to determine the issue of arbitrability. The agreement provided in part that “individual employees may submit to arbitration [an unresolved grievance] in cases of dismissal, demotion or suspension of not less than five working days.” The state filed a motion to dismiss arguing that the plaintiff was not a “party” to the agreement and that he could not therefore compel the state to arbitrate his grievance under General Statutes § 52-410. The trial court denied the state’s motion, however, and ordered that a separate arbitrator be appointed to determine the issue of arbitrability. The state appeals assigning as error the court’s denial of the motion to dismiss and the court’s order compelling arbitration. We find no error.

The state’s first claim is that the plaintiff is not a “party” to the collective bargaining agreement and, as a result, has no standing under General Statutes § 52-410 to compel arbitration. Section 52-410 (a) provides that: “A party to a written agreement for arbitration claiming the neglect or refusal of another to proceed with an arbitration thereunder may make application to the superior court ... for an order directing the parties to proceed with the arbitration in compliance with their agreement.” (Emphasis added.) The issue before us then is a narrow one, namely, whether the plaintiff was a “party” to the agreement within the meaning of the statute.

General Statutes § 52-410 was enacted in 1929 as part of legislation designed to make arbitration a workable alternative to judicial settlement of disputes. See General Statutes (1930 Rev.) §§ 5840 through 5856; see generally note, “Judicial Interpretations and Applications of the Connecticut Arbitration Statutes,” 7 Conn. L. Rev. 147, 148 (1974). Before these statutes were enacted, arbitration agreements were essentially unenforceable and a party could not petition the Superior Court to compel arbitration. See First Ecclesiastical Society v. Besse, 98 Conn. 616, 620-21, 119 A. 903 (1923); Yale & Towne Mfg. Co. v. International Assn. of Machinists, 15 Conn. Sup. 118, 120 (1947). The clear purpose of § 52-410 is to provide the “parties” to an arbitration agreement with an enforcement mechanism by permitting them to invoke the court’s equitable powers. The statute limits the availability of the remedy to “parties,” but the word is not defined. The term is used generically, referring to anyone who has contracted with another to arbitrate their disputes. The meaning must therefore be derived from the agreement itself. McCaffrey v. United Aircraft Corporation, 147 Conn. 139, 141-42,157 A.2d 920, cert. denied, 363 U.S. 854, 80 S. Ct. 1636, 4 L. Ed. 2d 1736 (1960).

The state claims that under the collective bargaining agreement the only “parties” are itself and the union. In support of its argument, it relies on the wording of the agreement’s preface and on the fact that the contract was negotiated by the union and not by the individual employees. The state, however, ignores the important role of the individual employees in labor negotiations and oversimplifies the nature of the collective bargaining process. Employees may not take part individually in negotiating the collective bargaining agreement, the actual negotiations being conducted by their agent, the union. Vaca v. Sipes, 386 U.S. 171, 191-93, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967). The employees’ interests are, however, represented by the agreement signed by the union on their behalf, and the agreement will often grant them the right individually to enforce certain provisions of the contract. They are in abroad sense, therefore, “parties” to the agreement. Some courts have likened the employees to third party beneficiaries. See J. I. Case Co. v. N.L.R.B., 321 U.S. 332, 336, 64 S. Ct. 576, 88 L. Ed. 762 (1944); Hudack v. Hornell Industries, 304 N.Y. 207, 214, 106 N.E.2d 609 (1952). In our judgment, however, “it is a mistake to attempt to force agreements between labor unions and employers into more familiar legal pigeonholes such as usage, third party beneficiary contracts, or contracts negotiated by the union as agent for the employees as principals. The law has always had trouble with tripartite relationships; and in the labor field there are additional complications. The parties affected by a collective bargaining agreement are employer, union, and many individual employees. . . . [T]he labor union ... is in a very real sense only ... the individual employees . . . acting as an organized group through its agents and through constitutional processes. . . . Since experience offers no factual parallel to these arrangements, no other legal conception is quite analogous.” Cox, “Rights Under a Labor Agreement,” 69 Harv. L. Rev. 601, 604 (1956).

We conclude then that individual employees may be “parties” to a collective bargaining agreement for the purposes of General Statutes § 52-410 if the collective bargaining agreement so provides. An employee has input in the contract negotiations through the union, has a clear interest in seeing the contract enforced and would have standing to compel arbitration under the statute if accorded that right in the agreement. Thus, if the collective bargaining agreement contains no provision giving employees the right to submit disputes to arbitration, then an employee could not seek relief under the statute. McCaffrey v. United Aircraft Corporation, supra, 142 (no standing where the contract did not contain a provision permitting employees to request arbitration); Arsenault v. General Electric Co., 147 Conn. 130, 133-34, 157 A.2d 918, cert. denied, 364 U.S. 815, 81 S. Ct. 42, 5 L. Ed. 2d 46 (1960) (same); Housing Authority v. Local 1161, 1 Conn. App. 154, 156-57, 468 A.2d 1251, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984) (same); see also Vaca v. Sipes, supra, 191; Black-Clawson Co. v. International Assn. of Machinists, 313 F.2d 179, 184 (2d Cir. 1962); Norton v. Massachusetts Bay Transportation Authority, 369 Mass. 1, 2, 336 N.E.2d 854 (1975). If the agreement explicitly grants employees the right to seek arbitration, however, the employee would be able to petition the court to enforce that right under General Statutes § 52-410. Gilden v. Singer Mfg. Co., 145 Conn. 117, 119, 139 A.2d 611 (1958) (standing where the contract permitted the employee to seek arbitration); see also Parker v. Borock, 5 N.Y.2d 156, 159, 156 N.E.2d 297 (1959); Ott v. Metropolitan Jockey Club, 307 N.Y. 696, 697-98, 120 N.E.2d 862 (1954); Falsetti v. Local 2026, 400 Pa. 145, 169-70, 161 A.2d 882 (1960). To hold otherwise would virtually nullify that part of a collective bargaining agreement granting an individual employee the right to seek arbitration and would defeat our state's policy favoring the private resolution of disputes through arbitration. See John A. Errichetti Associates v. Boutin, 183 Conn. 481, 488, 439 A.2d 416 (1981).

In this case, the arbitration agreement in effect provided that “an unresolved grievance may be submitted to arbitration by the Union or by the State, but not by an individual employee(s), except that individual employees may submit to arbitration in cases of dismissal, demotion or suspension of not less than five working days.” Under the agreement then, the plaintiff was entitled to seek arbitration of his grievance that he was unfairly demoted. He therefore also has standing to file an action pursuant to General Statutes § 52-410 and the trial court did not err in so holding.

The state also argues that the court should not have ordered the state to submit to arbitration because the plaintiff did not prove that he had been demoted and, as a result, did not establish that he was eligible to have his grievance submitted to arbitration. The agreement provided that: “On grievances when the arbitrability has been raised by either party as an issue prior to the actual appointment of an arbitrator, a separate arbitrator shall be appointed at the request of either party to determine the issue of arbitrability.” The trial court decided that the factual dispute over whether the plaintiff had been demoted was essentially a question of arbitrability and appointed a separate arbitrator to decide that issue.

It is well established that arbitration is a matter of contract and that parties may agree to have questions concerning the arbitrability of their disputes decided by a separate arbitrator. A. Sangivanni & Sons v. F. M. Floryan & Co., 158 Conn. 467, 471, 262 A.2d 159 (1969); College Plaza, Inc. v. Harlaco, Inc., 152 Conn. 707, 707-708, 206 A.2d 832 (1965); see A T & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648-49, 106 S. Ct. 1415, 89 L. Ed. 2d 648 (1986). If the parties have expressly agreed to submit questions of arbitrability to arbitration, the issue is not one for court determination and should be referred in accordance with the parties’ agreement. State v. Connecticut Employees Union Independent, 184 Conn. 578, 579-80, 440 A.2d 229 (1981); Board of Education v. Frey, 174 Conn. 578, 580-81, 392 A.2d 466 (1978). In this case the trial court correctly concluded that the plaintiff’s allegation concerning his demotion was an issue of fact going to the arbitrability of the grievance. Because the agreement specifically provides that such questions be referred to a separate arbitrator, the trial court did not err in ordering that such an arbitrator be appointed and in ordering that the state submit the issue to that person for resolution.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 52-410. application for court order to proceed with arbitration, (a) A party to a written agreement for arbitration claiming the neglect or refusal of another to proceed with an arbitration thereunder may make application to the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, to any judge thereof, for an order directing the parties to proceed with the arbitration in compliance with their agreement. The application shall be by writ of summons and complaint, served in the manner provided by law.
      “(b) The complaint may be in the following form:‘1. On . . . ., 19 . ., the plaintiff and the defendant entered into a written agreement for arbitration, of which exhibit A, hereto attached, is a copy. 2. The defendant has neglected and refused to perform the agreement for arbitration, although the plaintiff is ready and willing to perform the agreement. The plaintiff claims an order directing the defendant to proceed with an arbitration in compliance therewith.’
      “(c) The parties shall be considered as at issue on the allegations of the complaint unless the defendant files answer thereto within five days from the return day, and the court or judge shall hear the matter either at a short calendar session, or as a privileged case, or otherwise, in order to dispose of the case with the least possible delay, and shall either grant the order or deny the application, according to the rights of the parties.”

       The state also argues that it did not waive its sovereign immunity as to the plaintiffs cause of action. The state has conceded, however, that if the plaintiff is a “party” to the written agreement for the purposes of General Statutes § 52-410, then sovereign immunity would not bar the plaintiff’s action to compel arbitration. Because of our disposition of the definitional question under the statute, therefore, we do not address this additional claim.


source: Caselaw Access Project

author: Arthur H. Healey, J.

license: Public Domain

text:
    Hyman L. Shelnitz et al. v. Alvin D. Greenberg et al.
    (12239)
    Peters, C. J., Healey, Shea, Ment and A. Aronson, Js.

      Argued January 9
    decision released May 27, 1986

      William F. Gallagher, for the appellants (defendants).

      Alfred S. Julien, pro hac vice, with whom were Frank J. Mongillo, Jr., and David Jaroslawiez, for the appellees (plaintiffs).
   Arthur H. Healey, J.

This is a medical malpractice action brought in 1977 by Charlotte Shelnitz for personal injuries and by her husband, Hyman Shelnitz, for loss of consortium, arising out of an ambulatory myelogram performed by the defendant neurosurgeon, Alvin Greenberg, who at the time of the procedure was a member of the defendant Neurosurgical Associates of New Haven, P. C.

The plaintiff’s complaint alleged negligence and a failure by the defendant to obtain informed consent. After a trial to a jury, a verdict was returned in favor of the plaintiff in the amount of $750,000 for Charlotte Shelnitz and $50,000 for Hyman Shelnitz. The defendant’s motions to set aside the verdict and for judgment notwithstanding the verdict were denied and the court rendered judgment for the plaintiff. This appeal followed.

The defendant raises six issues on appeal: (1) whether the evidence was sufficient to support the jury verdict on the issue of causation; (2) whether the court erred in failing to give a Secondino charge; (3) whether the plaintiff produced expert testimony sufficient to support her claim of lack of informed consent; (4) whether several of the court’s evidentiary rulings resulted in harmful error; (5) whether the court erred in refusing to grant the defendant’s motions for a mistrial; and (6) whether the verdict was excessive. We find no error.

I

On the advice of her internist, the fifty-four year old plaintiff consulted the defendant on November 22, 1974, with respect to a back problem. After an examination, the defendant recommended conservative treatment. The plaintiff was not “making much progress” and called the defendant on January 3,1975, at which time she was told that he would perform an ambulatory myelogram at the Neuro-Diagnostic Center in New Haven on January 9, 1975. The plaintiff testified that during this telephone conversation the defendant did not tell her about “any of the risks” nor did he inform her that the myelogram could be performed in a hospital.

The testimony at trial established that a myelogram is an invasive diagnostic procedure whereby a contrast material, in this case Pantopaque, is injected into the patient’s spinal column and then fluoroscoped and highlighted by x-ray to determine whether there is any pathology of the lumbar vertebrae and other portions of the patient’s anatomy. See also 2 Schmidt, Attorneys’ Dictionary of Medicine, M-173; Stedman’s Medical Dictionary (24th Ed.) p. 917. The spinal canal consists of three membranes: the dura, the arachnoid in the middle, and the pia matter. It is a closed, pressurized system in which cerebrospinal fluid (CSF) circulates, cleansing and nourishing the spinal canal and the brain and the other elements of the central nervous system.

A physician, in order to perform a lumbar myelogram, uses a needle to puncture the dura and arachnoid membranes in order to inject the contrast material into the closed system. As a result of the puncture, CSF leaks out of the closed system of membranes into the tissue around the puncture of the dura until the puncture heals and reseals itself. Every patient loses a small amount of CSF in the course of the procedure. The leak of CSF lowers the pressure in the closed system, the central nervous system, and causes irritation to the brain, nerves and other elements of the central nervous system. The CSF leak and the attendant drop in pressure are thought to cause postmyelogram headaches.

When the plaintiff arrived at the defendant’s office at the Neuro-Diagnostic Center on January 9,1975, she was told by a radiology technician that she could possibly experience postmyelogram headaches of up to six weeks duration. The defendant performed the myelogram on the plaintiff and afterwards placed her on a stretcher “for about ten minutes or so.” She was then allowed to dress and was driven home by her husband. There were no facilities at the center for a patient to lie down for a period of time exceeding ten minutes because of the times scheduled for various patients.

A card given to patients, including the plaintiff, by the defendant’s office, contained directions to “stay in bed, for no less than eight hours following myelogram. Patient may get up to use bathroom only, meals should be served in bed. Patient should force fluids . . . .” (Emphasis in original.) The purpose of these procedures is to decrease the pressure on the puncture site and to decrease the frequency and severity of spinal headache.

The day after the myelogram, the plaintiff began to experience headaches and telephoned the defendant’s office. Several of the plaintiff’s calls to the defendant to inform him of her headaches were not returned. The defendant finally spoke with the plaintiff about her complaint and he prescribed Valium.

On February 5, 1975, the defendant admitted the plaintiff to Yale-New Haven Hospital with a diagnosis of spinal headache as a result of continued CSF leak, and, after bed rest, she was discharged on February 13, 1975. A few days later, the plaintiff again contacted the defendant and complained of headaches. He asked her to come to Yale-New Haven Hospital as an outpatient on February 22, 1975, to undergo a procedure, called a saline bolus injection, to be performed by an anesthesiologist in order to seal the presumed CSF leak. The procedure was considered unsuccessful and no writing evidencing this procedure could be found in either the defendant’s or Yale-New Haven’s records.

The plaintiff sought treatment for her condition in the Boston area, and, from 1975 through 1982, she was admitted nine times to two hospitals for diagnostic tests and treatments. She became a patient of Richard Tyler, a physician at Peter Bent Brigham Hospital (PBBH). She underwent two venous blood patch procedures in 1975 at PBBH in an attempt to close what was considered to be a leak. In March, 1978, a myelogram was performed at PBBH. A radioisotope dye injection in March, 1978, at PBBH was done and an evaluation by its department of nuclear medicine stated that there was “no evidence of CSF leakage.” In May, 1979, a cervical myelogram was performed. The plaintiff was again admitted to PBBH in November, 1979. Another myelogram was performed, and an evaluation by PBBH’s department of radiology indicated that there was a leak of the Pantopaque used in the myelogram from the subarachnoid space into the epidural space, although the “location of this leak [was] not ascertained.” The discharge diagnosis was “chronic postmyelogram headache.” In January, 1980, the plaintiff was again admitted to PBBH and a laminectomy was performed by Keasley Welch, a neurosurgeon, in an attempt to discover the cause of the plaintiff’s headaches. The operative note indicated that there was no “obvious CSF leak” but that a dimple was found in the area where the defendant had performed the original myelogram. The discharge diagnosis stated that there was a “persistent cerebral spinal leak.” In September, 1982, the plaintiff was admitted to PBBH and another myelogram, using metrizamide, was performed and there was “some extravasation of dye from the lumbar area.” The discharge summary of October 18, 1982, stated that because a spinal tap had revealed a normal CSF pressure reading it “implied] that the headaches are not low pressure headaches which had been the theory . . . .” An October, 1982 report by Tyler to Morton Bender, one of the plaintiff’s treating physicians in 1982, stated that dye escaping into the lumbar area indicated that the plaintiff’s positional headache has “many characteristics of a spinal fluid leak.”

In November, 1982, the Journal of Neurosurgery contained an article written by Doctors Harrington, Tyler and Welch of Boston on the plaintiff’s condition and subsequent hospitalizations, although her identity was not disclosed in the article. The defendant testified that he had read the article and recognized the patient as the plaintiff.

The plaintiff offered expert testimony from Herbert Rabiner, a radiologist, and Lawrence Kaplan, a neurologist and psychiatrist. Both doctors practice in New York state but testified that they were familiar with the standards of practice for myelograms in Connecticut in 1975. Neither of the plaintiffs experts had examined her prior to trial. Rabiner testified that “there is a direct causal relationship between the early precipitous ambulation of this patient and the prolonged severe post-myelographic or post-spinal headaches which she suffered as a result of this early ambulation.” He further testified that instructing the patient to ambulate ten minutes following the myelogram “was a deviation from accepted medical care at the time.”

Kaplan also testified that it was a departure from acceptable practice to allow a patient “to be up and around” only ten minutes after a lumbar myelogram and that this violation was the cause of the plaintiffs headaches. He testified that the fact that the patient had not been properly confined to bed rest after the procedure caused a delay in the healing of the puncture wound and that this delay is “going to cause a persistent spinal fluid leak .... [W]hen this persistent spinal fluid leak occurs, as it did in this case, it is related to the fact that healing was not properly permitted.”

The defendant offered expert medical testimony from Franklin Robinson, a neurosurgeon associated with the defendant, William Scoville, a neurosurgeon, James Collias, a neurosurgeon, William Allen, a neuroradiological specialist, and Robert Shapiro, a radiologist and author of a book on myelography. Robinson testified that there was no causal relation between a patient’s ambulation ten minutes after the procedure to go home and postmyelogram headaches. Robinson testified that it was good practice to advise patients, as he does, to assume the horizontal position following a myelogram, although not necessarily immediately following the procedure. Scoville, Collias and Allen testified that it was within the standards of care exercised by physicians performing myelograms in Connecticut in 1975 to allow patients to go home directly after the procedure. Shapiro testified that in Connecticut in 1975 a patient was permitted to go home following a myelogram “as soon as in the opinion of the physician . . . the patient was suited to go home.” The textbook authored by Shapiro, Myelography (3d Ed.), a portion of which the plaintiff offered into evidence and upon which she examined, states, however, that “the patient should be instructed to lie in the prone position without a pillow for twenty-four hours.”

II

The defendant’s first claim of error is that the plaintiff failed to establish the necessary causal relation between the defendant’s performance of the myelogram and the alleged injuries on the basis of reasonable medical probabilities. The defendant also claims that because of this failure, it was error for the trial court not to grant his motions for a directed verdict and for judgment notwithstanding the verdict. We find no error.

The defendant, in his brief, does not dispute the probability of a CSF leak following the myelogram as the cause of the plaintiff’s headaches immediately thereafter, but he does dispute whether there was sufficient evidence of this leak continuing for eight years and causing the plaintiff’s persistent headaches. The defendant claims that because the plaintiff’s treating physicians in the Boston area did not testify, the plaintiff’s Boston hospital records form the only factual basis for the plaintiff’s claim of a causal relation between the myelogram and the headaches.

The plaintiff claims, however, that her expert witnesses, specifically relying upon the hospital records and trial testimony, provided the expert opinion on the causal connection, including the belief that the plaintiff’s disability is permanent. “Causation may be proved by circumstantial evidence and expert testimony. Slepski v. Williams Ford, Inc., 170 Conn. 18, 22, 364 A.2d 175 (1975).” Pisel v. Stamford Hospital, 180 Conn. 314, 340-41, 430 A.2d 1 (1980). In a medical malpractice case, expert testimony is necessary to establish the standard of proper professional skill or care on the part of a physician, surgeon or other similar practitioner because “in most such cases a layman does not and cannot have the requisite knowledge as to whether the proper treatment was given, procedure followed, or care used.” Chubb v. Holmes, 111 Conn. 482, 486, 150 A. 516 (1930); see Ardoline v. Keegan, 140 Conn. 552, 556, 102 A.2d 352 (1954).

The expert opinion that seeks to establish the causal connection between the injury and the alleged negligence “must rest upon more than surmise or conjecture.” Boland v. Vanderbilt, 140 Conn. 520, 525, 102 A.2d 362 (1953). “In evaluating damages in a tort action, a trier is concerned with reasonable probabilities, not with possibilities.” (Citations omitted.) Healy v. White, 173 Conn. 438, 443, 378 A.2d 540 (1977); Sheiman v. Sheiman, 143 Conn. 222, 225, 121 A.2d 285 (1956).

“In reviewing the evidence . . . we must give it the most favorable construction in support of the verdict of which it is reasonably capable.” Healy v. White, supra, 442. “The causal relation between an injury and its later physical effects may be established by the direct opinion of a physician, by his deduction by the process of eliminating causes other than the traumatic agency, or by his opinion based upon a hypothetical question.” Boland v. Vanderbilt, supra. The medical experts called by the plaintiff in this case did not examine the plaintiff but prior to the trial they were able to review her medical records for hospitalizations subsequent to the myelogram performed by the defendant. The defendant claims that Rabiner, one of the plaintiffs expert witnesses, never saw any of the patient’s records after the hospitalization of March 19, 1975, and that he, therefore, did not have any basis for an opinion regarding causation subsequent to that hospitalization. We need not determine whether Rabiner’s testimony on causation could have provided the jury with evidence of a causal connection beyond mere speculation because the plaintiff’s other expert witness, Kaplan, provided the needed testimony.

Kaplan, although he did not personally examine the plaintiff, reviewed all of her hospital records before he testified. “A doctor may give an opinion on a medical issue without having examined or treated the patient.” Kaye v. Newhall, 360 Mass. 701, 703, 277 N.E.2d 697 (1972); see Barksdale Lumber Co v. McAnally, 262 Ark. 379, 388, 557 S.W.2d 868 (1977); Williams v. Dawidowicz, 209 Md. 77, 87-88, 120 A.2d 399 (1956). He testified that, in his opinion based on a reasonable degree of medical probability, the plaintiffs headaches, as recently as October, 1982, were causally related to the myelogram and postmyelogram care received by the plaintiff. He testified further that “even if the hole is plugged and there is no further leakage of spinal fluid demonstrable, the patient continues to have symptoms because of the prolonged duration of time that this remained a leaking hole.” Kaplan testified that, in his opinion, the plaintiff will have “permanent difficulty” as a result of the procedure and that the headaches will persist for the rest of her natural life. This testimony, if the jury believed it, was sufficient to establish the necessary causal relation as a fact and not as a matter of conjecture or speculation. In addition, the plaintiff testified that she had not experienced severe headaches before the myelogram but that since the procedure in January, 1975, she has “never lived a day . . . without a headache and having to go to bed.”

Although the defendant stresses in his brief that all four of his expert witnesses testified that the defendant’s myelogram procedure was in accordance with the established Connecticut standard of care in 1975, it is within the jury’s province to judge the credibility of the various witnesses. See Healy v. White, supra, 444. “As to the conflicting expert testimony, the jury is free to accept or reject each expert’s opinion in whole or in part.” Slepski v. Williams Ford, Inc., supra, 22-23. In view of all the evidence, the trial court was correct in declining to exercise its power to set aside the verdict or to render a judgment notwithstanding the verdict because there was sufficient evidence for the jury reasonably and legally to reach a verdict for the plaintiff.

III

The defendant next claims that the trial court erred in failing to give the Secondino charge requested by him. See Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960). We find no error on this claim. In his brief, the defendant argues that he requested this charge to raise a negative inference “from the plaintiffs failure to produce any of the physicians who treated her during eight years of hospital admissions for her alleged persistent headaches.” He maintains that Tyler, her chief treating physician for the alleged headaches from 1975 through 1982, was one of “the treating physicians in Boston” that the plaintiff would naturally have produced. He also includes Welch in that claim and he contends that testimony by the plaintiffs own expert patently meets the test in Nichols v. Coppola Motors, Inc., 178 Conn. 335, 342, 422 A.2d 260 (1979), for showing “availability” under Secondino. Citing Nichols and Grabowski v. Fruehauf Trailer Corporation, 2 Conn. App. 167, 477 A.2d 685 (1984), the defendant argues that the trial court erred in failing to grant his request for a Secondino charge on the ground that he failed to satisfy his burden of producing evidence sufficient to warrant the requested charge. Moreover, he argues that the evidence “from the uncalled medical specialists in Boston” would not have been cumulative or corroborative of testimony already on the record since none of the “specialist physicians” who actually treated the plaintiff for her alleged headaches testified.

The plaintiff, however, claims that the trial court properly refused the Secondino request as the defendant had not presented any evidence that Tyler had been available. Additionally, she refers to the colloquy between the court and defense counsel, when the court was taking the exceptions to its charge, where the trial court asked: “How do we know that all of these Boston doctors aren’t in China?” The plaintiff also argues that because Tyler is from Massachusetts, he is not subject to a subpoena from Connecticut courts. In response to the defendant’s Secondino claim, it is also argued that even a doctor who has been treating a patient has not thereby agreed to travel to a different state to testify, particularly in a medical malpractice case. It is also argued that any testimony by Tyler would have been totally cumulative because all his reports and records were in evidence and referred to throughout the trial.

We conclude that the trial court properly refused to grant the Secondino charge requested by the defendant for two independent reasons. First, the request to charge was itself defective. The object in filing a request to charge is to inform the trial court of a party’s claim of the applicability of a principle of law to the case. Pickens v. Miller, 119 Conn. 553, 555, 177 A. 573 (1935); see Kast v. Turley, 111 Conn. 253, 257-58, 149 A. 673 (1930); Practice Book § 318; Maltbie, Conn. App. Proc. § 109. Our rules provide that each request to charge shall contain “a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply. ” (Emphasis added.) Practice Book § 318; see Batick v. Seymour, 186 Conn. 632, 643, 443 A.2d 471 (1982); Ziskin v. Confietto, 137 Conn. 629, 633, 79 A.2d 816 (1951). A proper request to charge cannot, therefore, under our practice merely be a statement of an abstract proposition of law; Practice Book § 318; see Ratti v. Berry & Sons, Inc., 98 Conn. 522, 524, 119 A. 894 (1923); State v. Green, 86 N.J. 281, 290, 430 A.2d 914 (1981); any more than a court may give a charge, which though legally correct, is one “given in the abstract . . . and [is] insufficient fully to apprise the jury of the identity of the witness who was the subject of the charge.” Shea v. Tousignant, 172 Conn. 54, 59, 372 A.2d 151 (1976) (error in giving Secondino charge because given in abstract, made no reference to the evidence and did not fully apprise the jury of the identity of the “particular missing witness”). Our examination of the transcript and the exhibits indicates that Tyler and Welch appear to be those two Boston physicians who were the treating physicians. There were other physicians in Boston who treated the plaintiff, albeit not on the level of Welch and particularly Tyler. The request to charge should have specifically referred to the Boston physician or physicians to whom the Secondino request was directed. Such a reference accompanied by the evidence to which the request was claimed to apply would constitute a proper request. It would then have been adequate to permit the court to give instructions “sufficient to furnish a practical guide to the jury as to how the stated law [was] to be applied to the evidence before them.” Vita v. McLaughlin, 158 Conn. 75, 77, 255 A.2d 848 (1969); see Shea v. Tousignant, supra, 60. In that regard, we also note that in taking the exceptions, the trial court specifically pointed out to defense counsel that the request did not refer to “any specific witness.” Despite that, no names of any such witnesses were stated to the court at that time.

The second reason that the trial court properly declined to charge on Secondino as requested was because the defendant did not sustain his burden of demonstrating the availability of the witness. See, e.g., State v. Alfonso, 195 Conn. 624, 631, 490 A.2d 75 (1985); Doran v. Wolk, 170 Conn. 226, 229, 365 A.2d 1190 (1976); New England Whalers Hockey Club v. Nair, 1 Conn. App. 680, 685, 474 A.2d 810 (1984). The Secondino rule is: “ ‘The failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause.’ ” Secondino v. New Haven Gas Co., supra, 675, quoting Ezzo v. Geremiah, 107 Conn. 670, 677, 142 A. 461 (1928). The party against whose cause an unfavorable inference is claimed may, of course, offer evidence to explain the failure to produce the witness. “There are two requirements for the operation of the rule: The witness must be available, and he must be a witness whom the party would naturally produce.” Secondino v. New Haven Gas Co., supra.

There would appear to be no real dispute between the parties that Tyler would be a witness whom the plaintiff would naturally have produced under Secondino. We need not, however, reach that question because of the basis of our disposition of this claim. The defendant claims that Tyler was “available” under that rule and he points to the following language in Nichols v. Coppola Motors, Inc., supra, 342, to support his claim: “Availability may be shown or determined not only from mere physical presence or accessibility for service, but also from the relationship, usefulness or nature of the expected testimony and this means only that the witness is in such relationship with the party that it is likely that his presence could be procured.” Our statement in Nichols must be considered in the light of our discussion of “availability” in Secondino and its progeny. Whether a particular witness is “available” is one of two distinct requirements for the operation of the rule. Secondino v. New Haven Gas Co., supra, 675. The language of Nichols, as we now examine it, overlaps the two distinct requirements of the rule. Although this charge has been dubbed the Secondino charge, “it appears to have been first formally recognized in Ezzo v. Geremiah, supra.” State v. Daniels, 180 Conn. 101, 109, 429 A.2d 813 (1980). In Ezzo, and later in Secondino, the rule is expressly linked to the maxim that “ ‘all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted.’ ” Ezzo v. Geremiah, supra; Secondino v. New Haven Gas Co., supra; see State v. Alfonso, supra, 632; Turner v. Scanlon, 146 Conn. 149, 161, 148 A.2d 334 (1959).

While we have not said and do not say that to be available a witness must be subject to subpoena, it is apparent that a witness is “available” if the party against whom the negative inference of Secondino is claimed is able to procure the witness’ testimony at the trial. See State v. Bennett, 171 Conn. 47, 57, 368 A.2d 184 (1976). There is little question that availability is related to the naturalness of production requirement. The notion of the power and the ability to procure the witness, by process or otherwise, is critical to availability. Before a negative inference can be drawn from a party’s failure to produce a particular witness, it must be shown that the party was able to procure the witness’ physical presence in court. This capability of the naturalness of production of a witness has caused Wig-more to state that it “is unquestioned” that the person involved must be “within the power of the party to produce.” (Emphasis in original.) 2 Wigmore, Evidence (Chadboum Rev.) § 286. This is consonant with our view of the meaning of “available.” It accords with common sense, especially if it is kept in mind that wisdom counsels caution in the application of this inference. See McCormick, Evidence (3d Ed. 1984) § 272; 2 Wigmore, supra, § 285. It also is borne out by our implicit overruling in Queen v. Gagliola, 162 Conn. 164, 169, 292 A.2d 890 (1972), of “such cases as Cascella v. Jay James Camera Shop, Inc., 147 Conn. 337, 343, 160 A.2d 899 [1960], which placed the burden of proof of nonavailability on the party who would naturally have produced the witness.” Doran v. Wolk, supra, 229. Of course, “ ‘[w]hether an inference can be drawn from the failure to call witnesses necessarily depends, as with inferences generally, upon the posture of the particular case and the state of the evidence.’ ” Grady v. Collins Transportation Co., 341 Mass. 502, 506, 170 N.E.2d 725 (1960), quoting Commonwealth v. O’Rourke, 311 Mass. 213, 222, 40 N.E.2d 883 (1942). The Secondino charge, therefore, should not be given unless there is a sufficient foundation to do so. In a malpractice case, one court, in finding error in giving the negative inference charge, stated, in adopting Griffin v. California, 380 U.S. 609, 614, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965): “ ‘What the jury may infer, given no help from the court is one thing. What it may infer when the court solemnizes the silence . . . into evidence . . . is quite another.’ ” Wild v. Roman, 91 N.J. Super. 410, 415, 220 A.2d 711 (1966).

The defendant did not sustain his burden of demonstrating the availability of Tyler. The statements of Kaplan that Tyler “is in charge of neurology” at Peter Bent Brigham Hospital (PBBH), which was part of the Massachusetts General/Harvard Medical School in Boston, fall far short of that burden. Moreover, the defendant does not claim that there is any other evidence nor do we find any other evidence on this point.

IV

The defendant claims that the trial court erred in denying his motion for a directed verdict and in denying his motions to set aside the verdict and for judgment notwithstanding the verdict on the issue of informed consent because the plaintiff failed to produce expert medical testimony that a spinal headache of long duration is a risk of the myelogram procedure. Because we uphold the judgment in favor of the plaintiff on the issue of actionable negligence and because the jury’s award of damages on both issues is not severable, we need not address the informed consent issue since the damages awarded may stand on the negligence issue alone.

V

The defendant raises as a fourth claim of error several of the trial court’s evidentiary rulings. The defendant claims that a hypothetical question posed by the plaintiff to her expert witness, Kaplan, was defective because it assumed a fact not in evidence. The defendant objected, the court overruled the objection, and an exception was taken. The plaintiff claims that the defendant, on cross-examination of the expert, was allowed to prove the issue that he had objected to in the hypothetical-—whether on each of the plaintiffs hospitalizations over the last eight years “she’s there because of a post-spinal headache . . . .’’The defendant claims that the plaintiff’s hospital records do not bear out that assumption and points to a discharge summary of the plaintiff from PBBH in 1982 which indicates that the headaches may be of a “possible” vascular etiology.

In Floyd v. Fruit Industries, Inc., 144 Conn. 659, 666, 136 A.2d 918 (1957), we stated that the determination of the admissibility of a hypothetical question “calls for the exercise of a sound discretion as to whether the question, even though it does not contain all of the facts in evidence, presents the facts in such a manner that they bear a true and fair relationship to each other and to the whole evidence in the case . . . is not so worded as to be likely to mislead or confuse the jury, and is not so lacking in the essential facts as to be without value in the decision of the case.” (Citations omitted.) The court did not abuse its discretion in admitting the question.

The hypothetical, while not a model of clear speech, asked the expert to assume that the plaintiff was hospitalized because of her postspinal headache. What a patient reports as her symptoms upon admission to a hospital is not conclusive upon the treating physician as to the actual diagnosis. The plaintiff’s hospital records reflect, in the admission histories, a continued complaint of headache that began following the 1975 myelogram. We note that the plaintiff’s Yale-New Haven and Boston hospital records were in evidence as full exhibits prior to the hypothetical question involved and also that Kaplan had reviewed these records. The hypothetical question cannot be said to have distorted the facts or to have misled or confused the jury.

The defendant’s next claim of error in evidentiary rulings is in the court’s application of the “best evidence” rule to certain testimony of Robinson, one of the defendant’s expert witnesses. The expert witness was asked on redirect examination: “[I]n the period of time . . . from 10/1/73 through 9/30/74, approximately, sir, how many ambulatory myelograms were performed by your group during that period?” The plaintiff objected and claimed that the best evidence rule barred this testimony unless it was introduced through records kept by the group. The best evidence rule requires, where the contents of a document are to be proved, that the original document be offered into evidence unless such production is excused. See Brown v. Connecticut Light & Power Co., 145 Conn. 290, 296, 141 A.2d 634 (1958); Tait & LaPlante, Handbook of Connecticut Evidence § 10.7, p. 169; McCormick, Evidence §§ 229 through 233. The court sustained the objection and stated that “the best evidence would be the records of what the actual number of myelograms were, rather than the expression of his opinion at this point as to how many were done during that course of time.” The defendant took an exception to the ruling. We agree with the defendant that the question posed by him did not seek to prove the contents of a document. The defendant claims that the question instead sought to elicit information about Robinson’s experience in performing ambulatory myelograms. The trial court referred not only to the best evidence rule in sustaining the objection but also to the apparently inadequate foundation for Robinson’s testimony on this subject. The trial court stated that the period in question was an approximately eleven or twelve month period ten years prior to trial and that there had been a “long lapse of time” since then. The trial court did not abuse its discretion in sustaining the objection as the question was based on an inadequate foundation. Alternatively, the defendant has not demonstrated harmful error even if the trial court’s ruling is considered to have been based solely on the best evidence rule. The burden rests upon the defendant to demonstrate the harmfulness of the error. State v. Januszewski, 182 Conn. 142, 174, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). Because Robinson had previously testified that he had performed “thousands” of ambulatory myelographies “up through the month of January, 1975,” there was sufficient evidence before the jury of Robinson’s professional experience in this area so that the ruling cannot be said to have been harmful error.

VI

The defendant also claims error in the court’s denials of his motions for mistrial because the “cumulative harm” resulting from the actions of the plaintiff’s counsel and the remark of the plaintiff’s witness created “insurmountable prejudice” against him. The defendant specifically cites five incidents during the trial, for which each time a motion for mistrial was made, denied, and an exception taken. The first incident involved a remark by the plaintiff’s counsel concerning the formation of the codefendant professional corporation, about which he stated: “It goes to the motive of this doctor in trying to steer his patients into this corporation for billing purposes as opposed to a hospital.” The trial court, stating that the question of financial arrangements was totally irrelevant and immaterial to the case, instructed the jury to disregard the comment.

The second and third incidents claimed by the defendant to require a mistrial involved the manner in which the plaintiff’s counsel “browbeat” and “badgered” the defendant during his testimony. The fourth incident involved the plaintiff’s daughter, who when on redirect examination was asked if she felt “a sense of anger and hostility about what happened to [her] mother,” responded: “Anger? I’d like to kill that man [the defendant] right there.” The court instructed the jurors to disregard the last question and answer and instructed them that “the mere fact that there is an emotional response ... is not to have any significance to you as to the merits of this case.” The final incident raised by the defendant is the “browbeating” of Robinson during the plaintiff’s cross-examination. The trial court, after the particular incident at issue, again directed the jury to disregard the comments.

A mistrial, as a general principle, should only be granted when it is apparent to the trial court that because of an incident during the trial a party cannot have a fair trial. See State v. Fleming, 198 Conn. 255, 264, 502 A.2d 886 (1986); State v. Festo, 181 Conn. 254, 265, 435 A.2d 38 (1980); Izzo v. Crowley, 157 Conn. 561, 565, 254 A.2d 904 (1969); Ferino v. Palmer, 133 Conn. 463, 466, 52 A.2d 433 (1947). The trial court has wide discretion in ruling on motions for mistrial. See State v. Dolphin, 195 Conn. 444, 453, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985); State v. Festo, supra; State v. Piskorski, 177 Conn. 677, 719-20, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). “Moreover, we have consistently recognized that a careful, cautionary instruction given by the trial court is a relevant factor to be considered in determining whether the denial of such a motion constituted an abuse of the trial court’s broad discretion. See State v. Ruiz, 171 Conn. 264, 274, 368 A.2d 222 [1976]; State v. Savage, [161 Conn. 445, 449, 290 A.2d 221 (1971)]; State v. Miller, 154 Conn. 622, 631, 228 A.2d 136 [1967].” State v. Piskorski, supra, 720.

In the present case, the trial extended over several weeks and included extensive direct and cross-examination of the various witnesses. We have carefully reviewed the lengthy transcript in this case and find no error in the trial court’s denials of the defendant’s motions for mistrial. In the context of the entire trial, the above incidents involving the defendant or Robinson were reflective of the intense questioning by counsel from both sides. While not entirely proper or commendable examination tactics were used by the plaintiff’s counsel, the trial court did not abuse its discretion in denying the motions. As to the incident involving the plaintiffs daughter, it was an isolated incident in the trial. The trial court heard counsel for each of the parties before ruling on the motion, including the plaintiff’s counsel’s statement that the response was not anticipated or elicited but that it was “spontaneous.” “In making our independent assessment we do so under the limitations of a printed record, without the benefit of instant replay or of the sights and sounds of a trial in action. The trial judge, on the other hand, is in a better position to sense the atmosphere of the trial and therefore can apprehend far better than we can the effect of certain remarks on the jury. Marko v. Stop & Shop, Inc., 169 Conn. 550, 559, 364 A.2d 217 (1975); Butler v. Steck, 146 Conn. 114, 119, 148 A.2d 246 (1959).” Pisel v. Stamford Hospital, 180 Conn. 314, 322, 430 A.2d 1 (1980); see Pietrorazio v. Santopietro, 185 Conn. 510, 515, 441 A.2d 163 (1981). The trial court did not abuse its discretion in denying the defendant’s motions for mistrial.

VII

The defendant’s final claim of error is that the jury’s award of $800,000 in damages was excessive. The trial court denied the defendant’s motion to set aside the verdict and for judgment notwithstanding the verdict and rendered judgment for the plaintiff for $800,000. In his brief, the defendant claims that because the headaches suffered by the plaintiff cannot be causally connected to the defendant’s performance of the myelogram beyond a period of a few months, the award is “patently outrageous.” The defendant, in oral argument to this court, conceded that this claim would fail if we were to affirm the judgment on the negligence issue and find that causation was established. Because of our ruling on the causation issue, and in light of the defendant’s concession on this issue, we need not discuss this claim further.

There is no error.

In this opinion the other justices concurred.

       The references to the plaintiff encompass both Charlotte and Hyman Shelnitz, unless otherwise stated.

       References to the defendant encompass both Alvin Greenberg, M.D., and Neurosurgical Associates of New Haven, P.C.,unless otherwise stated.

       The plaintiffs expert witnesses testified that they were familiar with the standards in Connecticut for performing myelograms in 1975. We note that since the trial in this case we have expanded the geographical standard for expert witnesses testifying in medical malpractice cases to “include the entire nation.” Logan v. Greenwich Hospital Assn., 191 Conn. 282, 301, 465 A.2d 294 (1983).

       The defendant claims that Kaplan’s testimony concerning the venous blood patches performed by a physician in Boston in March, 1975, contradicts the opinion of the physician in the medical records. Kaplan’s opinion that the venous blood patches “were not successful” is not directly contradictory, as the medical record indicates that the treating physician considered the second blood patch successful as it “relieved one component of her headache.” The evidence of the treating physician’s opinion of the patches in the hospital record was before the jurors for their consideration and determination whether Kaplan’s testimony was contradictory.

       The defendant’s request to charge was the following: “The failure of a party to produce a witness whom it was within his power to produce and who would have naturally been produced by him permits an inference that the evidence of the witness would have been unfavorable to the party’s cause. A witness who would naturally have been produced by a party is one who was known to the party and who, by reason of his relationship to the party or to the issues, or both, could reasonably have been expected to have peculiar or superior information which was material to the case and would have been produced had it been favorable.” Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960).

       The defendant’s brief points to the following from the direct examination of Kaplan concerning Tyler:
      “Q. ... Do you know Dr. Tyler?
      “A. Oh yes; very well.
      “Q. Who’s Dr. Tyler, sir?
      “A. Dr. Tyler is in charge of neurology at Peter Bent Brigham.
      * ** *
      “Q. Is he considered one of the authorities in the field of neurology, sir?
      “A. Yes.
      “Q. Nationwide?
      “A. For a young man, I would say he is, yes. He is young.
      “Q. And, sir, do you know the institution with which he is connected, the medical institution?
      * * *
      “A. Peter Bent Brigham is part of the Massachusetts General/Harvard Medical School. It’s a private hospital.”

       In Grabowski v. Fruehauf Trailer Corporation, 2 Conn. App. 167, 477 A.2d 685 (1984), which involved a motor vehicle accident in Meriden, the Appellate Court sustained a Secondino charge, concerning a Meriden physician, which incorporated language from Nichols. In that case, there was testimony from two other physicians that the physician involved, who was the plaintiff’s family physician, was practicing medicine in Meriden “at the time of trial.” Grabowski v. Fruehauf Trailer Corporation, supra, 171.

       During the course of taking defense counsel’s exceptions to the charge, the following took place:
      “The Court: Incidentally, Attorney Willis, on that Secondino charge that you requested made.
      “Mr. Willis: Yes.
      “The Court: Now, you didn’t refer in that to any specific witness who the plaintiff failed to produce. Now, generally don’t you have to put on evidence in the course of the trial to show that that particular witness is available and within the control?
      “Mr. Willis: No, if your Honor please.
      “The Court: How do we know that all of these Boston doctors aren’t in China?

        “Mr. Willis: It’s up to the plaintiff to establish that they were not available, if it was a witness that they should have called under the Secondino case.
      “The Court: I thought under Secondino the burden is on the side that wants the inference charged to put on evidence to show that that doctor is available and within the control of the opposing party to produce him.
      “Mr. Willis: I disagree with your Honor’s interpretation.
      “The Court: We have a difference of opinion as what the Secondino—

      “Mr. Willis: Right.
      “The Court: —inference is.
      “Mr. Willis: Yes.”

       The posture of the defendant’s Secondino claim is perplexing. His request to eharge identified no missing witness at all. The colloquy at the close of the trial court’s charge during which the court referred to the “Boston doctors” elicited no name identification of any missing witness or witnesses. The defendant’s brief, while referring to Tyler and Welch as the treating physicians, focuses almost entirely, if not entirely, on Tyler. No other Boston physicians are named in his brief on this issue although the plaintiff did see other physicians, according to the transcript, in Boston. The defendant only refers us to evidence concerning Tyler’s “availability.” Consequently, mindful that it is the appellant’s obligation to ensure that this court is provided with an adequate appellate record to support his claims of error; State v. One 1977 Buick Automobile, 196 Conn. 471, 480, 493 A.2d 874 (1985); DeMilo v. West Haven, 189 Conn. 671, 681, 458 A.2d 362 (1983); we review this claim as to Tyler. We add, however, that there would be no basis, were we to reach it, upon which to review this claim as to any other of the “Boston doctors.”

       The Court of Appeals for the Second Circuit cast it in terms of “control” in Savard v. Marine Contracting, Inc., 471 F.2d 536, 542 (2d Cir. 1972), cert. denied sub nom. Savard v. Perini Corporation, 412 U.S. 943, 93 S. Ct. 2778, 37 L. Ed. 2d 404 (1973), when it said: “No inference can be drawn from failure to produce evidence not within the party’s control.”

       This also applies to Welch, who presumably was one of the “Boston doctors” who was not identified in the request or the colloquy on the exceptions.

       The jury responded affirmatively to each of the following two interrogatories that were submitted to it: “1.) Do you find for the plaintiffs on Counts 1 and 3 which relate to medical malpractice? 2.) Do you find for the plaintiffs on Counts 2 and 4 which relate to lack of informed consent?”


author: Dannehy, J.

text:
    State of Connecticut v. Russell Kuskowski
    (12169)
    Healey, Shea, Dannehy, Santaniello and Dean, Js.

      Argued February 6
    decision released June 3, 1986

      Daniel D. Skuret, with whom, on the brief, was Michael Moher, for the appellant (defendant).

      Judith Rossi, deputy assistant state’s attorney, with whom, on the brief, were Dennis Santore, state’s attorney, John M. Massameno, assistant state’s attorney, and James G. Clark, deputy assistant state’s attorney, for the appellee (state).
   Dannehy, J.

A jury found the defendant guilty of both possession of cocaine in violation of General Statutes (Rev. to 1981) § 19-481 (a) and possession of cocaine with intent to sell in violation of General Statutes (Rev. to 1981) § 19-480 (a). He was sentenced to concurrent terms of nine years for the latter offense with all but six years suspended, with three years probation, and one year for possession of cocaine. The defendant claims on appeal that the trial court erred: (1) in denying his motion to suppress physical evidence; (2) in denying his motion to suppress oral statements; and (3) in allowing the state toxicologist to testify that the substance recovered from the defendant was analyzed and found to be cocaine. We find no error.

On May 3, 1982, at approximately 11:41 p.m., Officer Maureen Doherty of the Brookfield police department was on routine patrol duty near Lake Lillinonah in Brookfield, several hundred yards from the neighboring town of Bridgewater. Across the lake, Doherty noticed a car with its interior light on parked in a boat launch area in Bridgewater. Doherty drove into Bridge-water, approached the car, and found the defendant unconscious in the driver’s seat with a burning propane torch on his lap. Doherty roused the defendant, removed him from the car, and shut off the propane torch. She asked for his identification, and whether he was all right. The defendant responded that he had fallen asleep, but was “okay now.” Doherty had noticed drug paraphernalia on the console and passenger seat of the defendant’s car. After other officers from the Brookfield police department arrived, Doherty conducted a full search of the defendant’s car. In the trunk she found two thermos bottles filled with cocaine. Trooper Jerry Roberts of the state police arrived, arrested the defendant, and read him his Miranda rights. The defendant told Roberts that the cocaine was for his personal use, and that he had been “free basing” in his car when Doherty found him. Later, at the state police barracks, the defendant stated that he sold cocaine to his friends at work. Other facts relevant to the defendant’s claims on this appeal are stated in the opinion.

I

Fourth Amendment

The defendant claims that the warrantless search of his automobile by Doherty was in violation of the fourth amendment to the United States constitution, and article first, § 7, of the Connecticut constitution. We address these claims only briefly. The defendant’s argument is based on the faulty premise that Doherty violated the law when she left her jurisdiction and entered the town of Bridgewater to investigate the defendant’s vehicle. We reject this premise. The defendant’s car was parked in a public boat launch area in the town of Bridgewater. Doherty, no less than any other citizen, had a right to stand beside the defendant’s car and peer in. When she saw the defendant passed out in the driver’s seat with a propane torch burning in his lap, she had every reason to rouse the defendant and put out the fire. In so doing, she observed cocaine and drug paraphernalia in plain sight on the console and passenger seat. These observations gave her probable cause to believe that the vehicle contained contraband and thus to seize and search the car, including the trunk, without a warrant. United States v. Johns, 469 U.S. 478, 105 S. Ct. 881, 83 L. Ed. 2d 890 (1985); Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983); United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982).

The defendant also claims that he was arrested by Brookfield police officers, and that this arrest was unlawful because the Brookfield police were beyond their jurisdiction in the town of Bridgewater. The state counters that the defendant was not arrested until later, when Trooper Roberts of the state police arrived and formally placed him under arrest. We need not decide the precise point at which the arrest occurred in this case, because Brookfield police officers were not without lawful authority to arrest the defendant in the town of Bridgewater.

The authority to arrest without a warrant is set forth in General Statutes § 54-lf. Subsection (b) provides that “[mjembers of . . . any local police department . . . shall arrest, without previous complaint and warrant, any person who the officer has reasonable grounds to believe has committed or is committing a felony.” General Statutes § 54-lf (b) does not limit the authority to make warrantless felony arrests to any particular political subdivision within the state. Subsection (b) stands in sharp contrast to subsection (a), which concerns the authority to make warrantless misdemeanor arrests. Martyn v. Donlin, 151 Conn. 402, 409-10, 198 A.2d 700 (1964); State v. DelVecchio, 149 Conn. 567, 573-74, 182 A.2d 402 (1962); see State v. Anonymous (1977-5), 34 Conn. Sup. 531, 538-39, 375 A.2d 417 (1977) (statutory history). Subsection (a) provides that members of a local police department “shall arrest, without previous complaint and warrant, any person for any offense in their jurisdiction, when the person is taken or apprehended in the act or on the speedy information of others.” (Emphasis added.) Read together, these subsections clearly indicate that a member of a local police department does not violate General Statutes § 54-lf by making a warrantless felony arrest beyond the territorial jurisdiction of his or her local police department. The Brookfield police officers clearly had probable cause to believe that the defendant possessed cocaine in his automobile. Under the circumstances of this case, this probable cause supported the defendant’s arrest and the subsequent search of his car. The trial court did not err in denying the defendant’s motion to suppress the cocaine and narcotics paraphernalia seized from his automobile.

II

Fifth Amendment

We next address the defendant's claim that the trial court erred in denying his motion to suppress incriminating statements that he made to his arresting officers. It is undisputed that Doherty never advised the defendant oihisMiranda rights before she attempted to ascertain whether anything was wrong with him. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Under the circumstances, it was not necessary that she do so. What Doherty saw when she looked into the defendant’s car, was an unconscious individual with a burning propane torch on his lap. The circumstances demanded that she react in the manner in which she did. After the defendant told her that he had merely fallen asleep, she asked him to show her some identification. At this point the defendant was not in custody, he was not being interrogated, he gave no incriminating answers, and he was not entitled to Miranda warnings.

The defendant was formally arrested by Roberts, who arrived at the scene shortly after the Brookfield police officers. Roberts advised the defendant of his rights, and began to question him during the ride to the state police barracks. The defendant never signed a waiver form, and was never asked if he would agree to waive his Miranda rights. On appeal he claims that his confession was involuntary, and that he did not voluntarily, knowingly and intelligently waive his Miranda rights.

Roberts testified that he read the defendant his Miranda rights from a printed card before placing him in the cruiser. He asked the defendant if he understood his rights and the defendant responded that he did. The defendant told Roberts that after fishing all day, he had returned to his car where he fell asleep. The defendant also stated that the cocaine recovered from his car was for personal use. The defendant was again advised of his Miranda rights at the state police barracks. He again replied that he understood his rights although he was not asked to sign a written waiver form. In response to questioning, the defendant stated that he sold cocaine to friends at work. He also told the troopers that he wanted to cooperate with them. The interrogation at the state police barracks lasted between fifteen and twenty minutes. The defendant appeared to be alert, conducted himself normally, and did not appear to experience any adverse effects from the ingestion of cocaine. He made eye contact with the troopers as he spoke, and responded to their questions freely and without hesitation.

The defendant denied that he had made the incriminating statements attributed to him by the troopers. He testified that he never stated that the cocaine found in his car was for personal use, or that he sold cocaine to friends at work. He further testified that he had requested an attorney.

The trial court rejected the defendant’s testimony as not credible, and found that the defendant had not requested counsel. It further found that the defendant’s statements were made voluntarily. Although the defendant never expressly waived his Miranda rights, the “United States Supreme Court [has] held that a waiver of the Miranda rights need not be by an express statement but may be inferred from the actions or words of the person interrogated.” State v. Wilson, 183 Conn. 280, 284, 439 A.2d 330 (1981); North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979); see State v. Pecoraro, 198 Conn. 203, 207-208, 502 A.2d 396 (1985). Where the defendant has not expressly waived his Miranda rights, the state must demonstrate “(1) that the defendant understood his rights, and (2) that the defendant’s course of conduct indicated that he did, in fact, waive those rights.” (Emphasis in original.) State v. Wilson, supra, 285; State v. Derrico, 181 Conn. 151, 169, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980).

The defendant in this case was twice advised of his Miranda rights, and twice indicated that he understood them. One who understands his Miranda rights must necessarily understand that anything he says to police may later be used against him in court. The defendant never indicated that he did not want to speak with the troopers, and in fact affirmatively stated that he wanted to cooperate with them. There was no evidence whatsoever that the troopers made any threats or promises to the defendant, or mentally or physically abused him in any way. The interrogation at the state police barracks lasted for less than one half hour. The defendant had just been caught with a large quantity of cocaine in his vehicle, and a burning propane torch in his lap. The trial court could reasonably have concluded from the circumstances disclosed by the evidence that the defendant’s entire course of conduct evinced a spirit of cooperation with his arresting officers.

The defendant presented no evidence which might have supported a finding by the trial court that his statements were involuntary, or that he did not voluntarily, knowingly and intelligently waive his Miranda rights. While the defendant has no burden to present such evidence, the testimony of the state’s witnesses fully supports the trial court’s ruling denying the defendant’s motion to suppress his oral statements. The trial court, as trier of fact, had the right to disbelieve the defendant’s testimony that he requested counsel. We therefore find that the trial court did not err in denying the defendant’s motion to suppress his oral statements.

Ill

Toxicology Report

The state offered the testimony of Joel Milzoff, a toxicologist employed by the Connecticut department of health services, to establish that the white powdery substance found in the defendant’s car was cocaine. Milzoff testified that four different analytical tests were performed on the substance by Carol Hassett, a chemist under Milzoff s direction. The defendant objected to the admissibility of Milzoff’s testimony on the grounds that it was hearsay and that it deprived him of his sixth amendment right of confrontation. The trial court overruled the objection.

In State v. Cosgrove, 181 Conn. 562, 569-84, 436 A.2d 33 (1980), we extensively considered this very claim. The gist of our holding was that where the testing procedure is reliable, the test results may be admitted into evidence through someone other than the actual chemist who performed the test. State v. Rawls, 198 Conn. 111, 115-17, 502 A.2d 374 (1985). The procedures and techniques utilized by Hassett in testing the cocaine were established by Milzoff himself, and he had personally tested those procedures and techniques. On voir dire by the defendant Milzoff explained in great detail the four analytical tests used in this case. Moreover, Milzoff had been present in the laboratory when Has-sett performed the tests on the substances seized from the defendant’s car. Finally, Milzoff testified that he had reviewed the raw test data developed by Hassett and reached his own independent conclusion that the substance was cocaine.

There was ample evidence before the trial court from which it could reasonably have determined that the testing procedure used in this case was reliable. The trial court did not err in overruling the defendant’s objection to Milzoff’s testimony.

There is no error.

In this opinion the other justices concurred.


author: Santaniello, J.

text:
    City of Milford v. Local 1566, Council 4, AFSCME et al.
    (11918)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.
    Argued February 13
    decision released June 3, 1986

      Michael J. Lombardo, assistant attorney general, with whom were, on the brief, Joseph I. Lieberman, attorney general, and, on the brief on the cross appeal, Robert E. Walsh, Charles H. Overend and Brian J. Comerford, assistant attorneys general, for the appellantappellee (state board of mediation and arbitration).

      Bruce L. Levin, with whom were Julia B. Geib, law student intern, and, on the brief, George F. Martelon, Jr., for the appellee-appellant (plaintiff).
   Santaniello, J.

The principal issue raised on these appeals is whether members of the state board of mediation and arbitration must take an oath pursuant to General Statutes § 52-414 (d) before arbitrating every dispute. The appeals arise out of an employment dispute between Frank Redin, represented by Local 1506, Council 4, of the American Federation of State, County and Municipal Employees, AFL-CIO (the union), and the plaintiff, the city of Milford. Redin filed a grievance with the union alleging that the plaintiff unfairly discharged him. In accordance with the procedures established in the collective bargaining agreement between the plaintiff and the union, the grievance was submitted to arbitration before the state board of mediation and arbitration (the board). A panel of three board members heard the case and found that Redin had been discharged in violation of his rights under the bargaining agreement. The award provided that Redin be reinstated and that he be compensated for lost wages. The plaintiff thereafter applied to the Superior Court to have the award vacated, arguing, inter alia, that the award was invalid because the arbitrators did not take the oath required by General Statutes § 52-414 (d) before hearing the grievance. The board moved to intervene in order to defend the validity of its arbitration procedures. The court allowed the board to intervene, but agreed with the plaintiff that the award should be vacated on the ground that the arbitrators did not take the oath under the statute. The court then ordered that the case be reheard by another panel of arbitrators.

The board appeals from the trial court’s order vacating the award. It argues that the court erred in holding that before the members of the board can arbitrate a dispute, they must take the oath required by § 52-414 (d). The plaintiff responds that the board has no standing to appeal the court’s decision and that the court properly vacated the award. The plaintiff also cross appeals, arguing that the court erred in permitting the board to intervene and that the court should not have ordered a rehearing. We find the issues in favor of the board and remand the case for further proceedings.

I

We address first those issues which question the board’s interest in this action: whether the court erred in granting the board permission to intervene in the application to vacate the arbitration award and whether the board has standing to appeal the court’s decision.

The plaintiff filed its application to vacate the arbitration award on February 2, 1982. In the application it argued that the arbitrators did not take the oath required by General Statutes § 52-414, that the award was contrary to the evidence, and that the award was vague, “against the law” and “contrary to public policy.” Redin and the union defended the action and applied for an order confirming the award. On February 25,1982, the board moved to intervene because its general practice at the time did not require its members to take the oath in question before hearing grievances, and an adverse ruling on the issue would affect all cases heard by the board. In the motion, the board did not specify whether it was moving to intervene as of right or was seeking permissive intervention. See Practice Book §§ 99 and 100. It argued that “[t]he integrity of the Board is being attacked, and the legality of Board proceedings and awards rendered by the Board is being questioned by the Plaintiff in this action.” The court thereafter granted the motion without comment.

The plaintiff claims in its cross appeal that the board has no intrinsic interest in the outcome of the arbitration proceedings; and that, as a result, the trial court should not have permitted intervention. Because the court did not state the theory on which it allowed intervention, the plaintiff argues both that the board has no right to intervene under Practice Book § 99 and that the court abused its discretion in granting permissive intervention. It is unnecessary to consider the board’s right to intervene, however, because we find that the court’s action was fully supported under the law governing permissive intervention.

“The consideration of permissive intervention involves numerous factors including the timeliness of the intervention, the proposed intervenor’s interests in the controversy, the adequacy of representation of such interests by existing parties, the delay in the proceedings or other prejudice to the existing parties the intervention may cause, and the necessity for or value of the intervention in terms of resolving the controversy before the court. See Fed. R. Civ. Proc. 24 (b). A ruling on a motion for permissiye intervention would be erroneous only in the rare case where such factors weigh so heavily against the ruling that it would amount to an abuse of the trial court’s discretion.” Horton v. Meskill, 187 Conn. 187, 197, 445 A.2d 579 (1982); see also In re Juvenile Appeal (Docket No. 10718), 188 Conn. 259, 266, 449 A.2d 165 (1982) (Shea, J., dissenting).

Applying the factors set forth above, we conclude that the trial court did not abuse its discretion in granting the board’s request to intervene. The board’s intervention, coming two weeks after the city’s application, was timely under the circumstances. Intervention before that date would not have been practical. Although the board does not have an interest in whether the award is ultimately vacated or confirmed, it has a significant interest in protecting the validity of the procedures used to determine the award. To vacate the award on the basis that the arbitrators were not sworn as required by law calls into question the legality of the board’s proceedings and, by implication, jeopardizes the validity of almost all of its arbitration decisions. Concerning the factor of delay or prejudice, the city argues that the board’s appeal caused a three year delay in the resolution of the grievance. The possibility of an intervenor’s appeal is present every time intervention is requested, however, and that possibility should not, standing alone, be grounds for denying permission to intervene. Finally, while it is true that the union and Redin would have been able to argue the board’s position concerning the oath, the court could reasonably have assumed that the board was in a better position to defend its own procedures.

The city also contends that even if the board were properly allowed to intervene, the board does not have standing to appeal the court’s order vacating the award. The gravamen of the claim is that the board was not “aggrieved” by the trial court’s ruling and therefore does not have sufficient interest in the matter to pursue an appeal.

“ ‘It is settled law that the right to appeal is purely statutory and is allowed only if the conditions fixed by statute are met. Zachs v. Public Utilities Commission, 171 Conn. 387, 394, 370 A.2d 984 [1976]; Prevedini v. Mobil Oil Corporation, 164 Conn. 287, 293, 320 A.2d 797 [1973].’ In re Juvenile Appeal (Anonymous), 181 Conn. 292, 293, 435 A.2d 345 (1980).” Local 1303 & Local 1378 v. FOIC, 191 Conn. 173, 175, 463 A.2d 613 (1983). General Statutes § 52-423 provides that “[a]n appeal may be taken from an order confirming, vacating, modifying or correcting an award, or from judgment or decree upon an award, as in ordinary civil actions.” In all civil actions a requisite element of appealability is that the party claiming error be “aggrieved” by the decision of the trial court. General Statutes § 52-263; Practice Book § 3000; Local 1303 & Local 1378 v. FOIC, supra, 175-76; Kulmacz v. Kulmacz, 177 Conn. 410, 412, 418 A.2d 76 (1979).

The plaintiff argues that the board is not aggrieved because it has no personal interest in whether this particular arbitration award is vacated or confirmed. The board responds that its interest springs from the fact that the validity of its procedures are challenged and the court’s ruling interferes with the discharge of its statutory responsibilities. The test for determining aggrievement encompasses a well settled twofold determination: first, the party claiming aggrievement must demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest shared by the community as a whole; second, the party claiming aggrievement must establish that this specific personal and legal interest has been specially and injuriously affected by the decision. Zoning Board of Appeals v. Freedom of Information Commission, 198 Conn. 498, 502, 503 A.2d 1161 (1986); Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47, 478 A.2d 601 (1984); Local 1303 & Local 1378 v. FOIC, supra, 176; Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 493, 400 A.2d 726 (1978). Mere status as a party or a participant in the proceedings below “does not in and of itself constitute aggrievement for the purposes of appellate review.” Hartford Distributors, Inc. v. Liquor Control Commission, 177 Conn. 616, 620, 419 A.2d 346 (1979).

We have never specifically addressed the issue of whether a state agency is “aggrieved” by a ruling which questions the validity of its administrative procedures. The plaintiff relies on our decision in Local 1303 & Local 1378 v. FOIC, supra, where we held that under the governing statutes and the circumstances of the case, the freedom of information commission had no “specific personal or legal interest” in the dispute and, as a result, could not appeal the decision of the Superior Court overturning the commission’s decision. Local 1303 & Local 1378, is inapposite, however, because the trial court’s decision in that case did not challenge the validity of the commission’s procedures. Id., 177. Our research reveals that other courts have found that governmental agencies would have standing in similar circumstances where the lower court’s ruling impaired the agency’s ability to discharge effectively the obligations imposed on it by law. See Chapman v. Federal Power Commission, 345 U.S. 153, 155-56, 73 S. Ct. 609, 97 L. Ed. 918 (1953); Coleman v. Miller, 307 U.S. 433, 441-42, 59 S. Ct. 972, 83 L. Ed. 1385 (1939); United States v. Federal Maritime Commission, 694 F.2d 793, 801-802 (D.C. Cir. 1982); Koniag, Inc., Village of Uyak v. Andrus, 580 F.2d 601, 605-607 (D.C. Cir.), cert. denied, 439 U.S. 1052, 99 S. Ct. 733, 58 L. Ed. 2d 713 (1978); Washington Utilities & Transportation Commission v. F.C.C., 513 F.2d 1142, 1149-51 (9th Cir.), cert. denied sub nom. National Association of Regulatory Utility Commissioners v. F.C.C., 423 U.S. 836, 96 S. Ct. 62, 46 L. Ed. 2d 54 (1975); see generally 4 Davis, Administrative Law (2d Ed. 1983) § 24.16. Although the above cases are not controlling; New Haven v. Public Utilities Commission, 165 Conn. 687, 701, 345 A.2d 563 (1974); we find their reasoning to be consistent with our notions of aggrievement and we correspondingly adopt the rule in the circumstances presented by this case.

Under General Statutes §§ 31-91 through 31-100, the board is given the broad responsibility of helping to resolve labor disputes. See Board of Police Commissioners v. Maker, 171 Conn. 613, 620, 370 A.2d 1076 (1976); Danbury Rubber Co. v. Local 402, 145 Conn. 53, 55, 138 A.2d 783 (1958). Consistent with its responsibilities, the board is empowered to arbitrate employee grievances; General Statutes § 31-97; mediate strikes and lockouts; General Statutes § 31-99; subpoena witnesses, order the production of documents; General Statutes § 31-95; and render awards in proceedings conducted under its authority. General Statutes §§ 31-95, 31-97. The court’s ruling in this case nullifying an award made by members of the board because they were not sworn pursuant to General Statutes § 52-414 (d) clearly undermines the integrity of the administrative procedure employed by the board and calls into question the validity of most of the decisions it has rendered. The ruling therefore directly interferes with the discharge of the board’s statutory responsibilities and the board, as a result, has sufficient interest in the controversy to confer standing.

II

The primary issue raised by these appeals is whether the trial court properly vacated the award on the ground that the arbitrators did not take the oath contained in General Statutes § 52-414 (d). The board argues that its members are sworn upon taking office and that § 52-414 does not apply to the board’s arbitration of labor disputes under General Statutes §§ 31-91 through 31-100. The plaintiff responds that the legislature intended that all arbitrators, regardless of their position on the board, be required to take the § 52-414 (d) oath before hearing a dispute.

The parties have stipulated that the three arbitrators in this case were board members and that they were sworn to uphold the duties of their office upon appointment by the governor. General Statutes § 4-1 provides that “each person appointed or nominated for appointment by the governor, with or without the advice and consent of the general assembly or either house thereof . . . shall be sworn and shall hold office for the term prescribed by law . . . Article eleventh, § 1, of the state constitution further provides that “[mjembers of the general assembly, and all officers, executive and judicial, shall, before they enter on their duties of their respective offices, take the following oath or affirmation, to wit: You do solemnly swear (or affirm, as the case may be) that you will support the constitution of the United States, and the constitution of the state of Connecticut, so long as you continue a citizen thereof; and that you will faithfully discharge, according to law, the duties of the office of. . . . to the best of your abilities. So help you God.” See also General Statutes § 1-25. The plaintiff does not dispute that the board members are “officers” of the state and are required to take the constitutional oath.

General Statutes § 52-414 was enacted in 1929 as part of legislation designed to make arbitration a workable alternative to judicial settlement of disputes. Paranko v. State, 200 Conn. 51, 54, 509 A.2d 508 (1986). The statutes, now General Statutes §§ 52-408 through 52-424, provide for arbitration generally and do not specifically refer to the resolution of labor disputes through the state board of mediation and arbitration. Danbury Rubber Co. v. Local 402, supra, 57. General Statutes § 52-414 (d) states that: “Before hearing any testimony or examining other evidence in the matter, the arbitrators and umpire shall be sworn to hear and examine the matter in controversy faithfully and fairly and to make a just award according to the best of their understanding, unless the oath is waived in writing by the parties to the arbitration agreement.” In nonlabor matters we have held that if the arbitrators failed to take the oath required by § 52-414 (d), the award is invalid and must be vacated. Reinke v. Greenwich Hospital Assn., 175 Conn. 24, 392 A.2d 966 (1978).

Thirty-four years prior to the enactment of our arbitration statutes, “the General Assembly had passed ‘An Act Creating a State Board of Mediation and Arbitration.’ Public Acts 1895, c. 239. This act provided in general for the submission of grievances and disputes between an employer and his employees to a board of mediation and arbitration.” Danbury Rubber Co. v. Local 402, supra, 55. The act is now embodied in General Statutes §§ 31-91 through 31-100. It “was designed to deal exclusively with employer-employee grievances and disputes.” Id., 57.

We start with the familiar assumption that in enacting § 52-414, the legislature was cognizant of existing law, including §§ 31-91 through 31-100, § 4-1, and article eleventh, § 1, of the state constitution. State v. West, 192 Conn. 488, 494, 472 A.2d 775 (1984); Vartuli v. Sotire, 192 Conn. 353, 362, 472 A.2d 336 (1984). It is presumed, therefore, that the legislature intended General Statutes § 52-414 to be harmonious with the statutes providing for the arbitration of labor disputes and we must, if possible, “construe each to leave room for the meaningful operation of the other.” State v. West, supra. The board claims that the trial court’s interpretation of the statutes, requiring board members to take a second oath before hearing disputes, creates an unnecessary procedure clearly not intended by the legislature. The plaintiff contends that the two oath requirements are consistent and that both should be given effect. We find the board’s arguments more persuasive.

The labor legislation of 1895, creating a board of mediation and arbitration, was designed to cope with the special problems of employer-employee disputes and “provides a complete procedure up to the making of a decision by the board. Chapter 65 of the Public Acts of 1929, presently General Statutes [§§ 52-408 through 52-424], deals, on the other hand, with the subject of arbitration generally. Pratt, Read & Co. v. United Furniture Workers, [136 Conn. 205, 206, 70 A.2d 120 (1949)].” Danbury Rubber Co. v. Local 402, supra, 57. The procedures established under each set of statutes are separate and distinct. See Marsala v. Valve Corporation of America, 157 Conn. 362, 365, 254 A.2d 469 (1969). The board members are independently authorized under General Statutes §§ 31-91 through 31-100 to arbitrate labor disputes and render awards. It would therefore be contrary to the intent of the legislature to impose the requirements of § 52-414 on the proceedings conducted under the aegis of the board.

Furthermore, it would be anomalous to require board members to take an oath before every proceeding where they have already been sworn upon taking office. See Berger v. Guilford, 136 Conn. 71, 81-82, 68 A.2d 371 (1949); State ex rel. Rundbaken v. Watrous, 135 Conn. 638, 647-48, 68 A.2d 289 (1949). As Judge Hull, writing for the Appellate Court in Stratford v. Council 15, 3 Conn. App. 590, 592, 490 A.2d 1021, cert. denied, 196 Conn. 809, 494 A.2d 905 (1985), has noted, “[s]uch a requirement would be analogous to requiring judges and referees to take an oath prior to hearing every case.” If we were to agree with the plaintiff and apply the oath provision of General Statutes § 52-414 (d) to board members, we would in effect render their constitutionally mandated oath redundant. The members’ constitutional oath, although broadly worded in terms of “duties,” clearly encompasses the obligations recited in § 52-414 to arbitrate all labor disputes “faithfully and fairly.” The legislature in passing § 52-414 (d), therefore, only intended that the section apply to those arbitrators not otherwise sworn to arbitrate disputes.

We conclude then that General Statutes § 52-414 does not impose additional oath-taking requirements on board members and that the award rendered by the board members in this case was valid by virtue of their oath taken upon assuming office. The trial court therefore erred in vacating the award on the ground that the § 52-414 oath was not taken. Because the court below did not reach the other questions raised by the plaintiff in its application to vacate the award, the case must be remanded for consideration of those issues.

There is no error in the plaintiff’s cross appeal; there is error in the board’s appeal, the judgment is set aside and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other justices concurred.

       General Statutes § 52-414 (d) provides: “Before hearing any testimony or examining other evidence in the matter, the arbitrators and umpire shall be sworn to hear and examine the matter in controversy faithfully and fairly and to make a just award according to the best of their understanding, unless the oath is waived in writing by the parties to the arbitration agreement.”

       Redin and the union have not joined the board in its appeal.

       The plaintiff also questions the board’s interest in the proceedings on the ground that under General Statutes § 52-410 standing to apply for the vacation or confirmation of an arbitration award is limited to the “parties” to the arbitration. See Paranko v. State, 200 Conn. 51, 509 A.2d 508 (1986). General Statutes § 52-410, however, does not limit the court’s discretion to permit a third party to intervene in the proceedings and does not limit an intervenor’s standing to appeal the court's decision. Thus, although the board may not have been able to apply for an order confirming or vacating an award under the statutes, it could seek intervention and could, if sufficiently aggrieved by the court’s order, appeal.

       Because of our disposition of the board’s claim that the court erred in vacating the award, we do not reach the plaintiffs claim on its cross appeal that the court erred in ordering a rehearing.