author: Peters, C. J.

text:
    Hospital of St. Raphael v. New Haven Savings Bank
    (13169)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued November 10
    decision released December 29, 1987

      Penny Q. Seaman, for the appellant (defendant).

      Sidney Gimple, for the appellee (plaintiff).

      John A. Cvarch filed a brief for the Savings Banks’ Association of Connecticut as amicus curiae.
   Peters, C. J.

The sole issue in this case is whether a creditor may garnish, as a debt owed to the underlying debtor, the proceeds of bank accounts for which, prior to the garnishment, the debtor had received teller’s checks made payable to the order of a third person. The plaintiff, the Hospital of Saint Raphael, brought a civil action against Isabel Gonzales, in conjunction with which it obtained a prejudgment order of garnishment. The garnishee, the New Haven Savings Bank, was duly served in accordance with the provisions of General Statutes § 52-329. After obtaining a judgment against Gonzales in the amount of $28,409.24, the plaintiff demanded payment from the defendant. When the defendant refused to pay, the plaintiff brought this action of scire facias pursuant to General Statutes § 52-381. The plaintiff then filed a motion for summary judgment, which the trial court granted. The defendant appeals from this judgment. We find error.

The underlying facts are undisputed. Isabel Gonzales had two accounts with the defendant bank, a passbook savings account and a certificate of deposit. On September 2, 1981, Gonzales closed these accounts and received in exchange two teller’s checks drawn by the defendant on the Union Trust Company. These checks, one for $21,000 and one for $10,000, were made payable to the order of Isabel Rodriquez.

The following day, September 3,1981, notice of garnishment was served on the defendant. The garnishment directed the sheriff to attach, to the value of $30,000, the goods or estate of Isabel Gonzales, a/k/a Isabel Gonzalez, a/k/a Maria Gonzales, a/k/a Maria Gonzalez. The writ made no mention of anyone named Rodriquez. The checks were subsequently deposited for payment in a bank in Puerto Rico and were thereafter presented to and paid by the Union Trust Company.

After the action against Gonzales had been reduced to judgment in 1986, the plaintiff filed its complaint in scire facias, alleging that the defendant was obligated to pay because, at the time it was given notice of the writ of garnishment, it was indebted to Isabel Gonzales. The complaint contained no allegation concerning Rodriquez.

The plaintiff thereafter filed a motion for summary judgment. In its affidavit in support of this motion, the plaintiff for the first time included a “contention that . . . Isabel Rodriquez and Isabel Gonzales . . . are one and the same person.” This contention was based upon a reference to Gonzales’ driver’s license which was used for the purpose of identification when the teller’s checks were deposited for payment in Puerto Rico. The defendant’s counter affidavit denied that it knew or should have known, at the time of the garnishment, that Gonzales and Rodriquez were the same person. The defendant’s affidavit noted that it would not have seen any endorsement on the teller’s checks until after the checks had been paid by the drawee bank.

The trial court granted the plaintiff’s motion for summary judgment without making a finding concerning the identity of Rodriquez. Even if the teller’s checks had been issued to a stranger, the court concluded, the defendant had failed to take the proper action with respect to the garnishment of the debt. The court determined that, under our case law, the proceeds of the debt owed to Gonzales were still deemed to be “in the hands of [the] garnishee” despite the issuance of the teller’s checks in satisfaction of the debt. The court concluded that because, at the time of the garnishment, the defendant could still have stopped payment on the checks, its debt to Gonzales had not yet been discharged and, consequently, it was liable to the plaintiff in this action.

A writ of garnishment subjects to the claims of a creditor only a debt which, at the time of the garnishment, was due to the underlying debtor. Dorr-Oliver, Inc. v. Willett Associates, 153 Conn. 588, 595, 219 A.2d 718 (1966); Seigel v. Heimovitch, 128 Conn. 543, 544, 24 A.2d 481 (1942). The question before us is therefore whether, on the facts of this case, the defendant was indebted to Gonzales on September 3, 1981. In light of the governing provisions of the Uniform Commercial Code, we agree with the defendant that its obligations on the savings accounts had then been discharged, and its obligations on the teller’s checks páyable to Rodriquez did not constitute a debt owing to Gonzales. In the absence of a continuing outstanding debt to Gonzales, the defendant was not answerable to the plaintiff for its judgment against Gonzales. The trial court’s judgment to the contrary was in error.

The first issue that we must address is the validity of the plaintiff’s claim that Gonzales continued to have an interest in her bank accounts despite the defendant’s issuance of the two teller’s checks. The plaintiff cites a number of cases that rely on the common law presumption that checks are ordinarily taken as conditional rather than as absolute payment, and their acceptance, until they are finally paid, does not discharge the obligation that they replace. Tuckel v. Jurovaty, 141 Conn. 649, 651, 109 A.2d 262 (1954); Sperandeo v. Aetna Casualty & Surety Co., 131 Conn. 407, 410-11,40 A.2d 280 (1944); Second National Bank of New Haven v. Harris, 122 Conn. 180, 184-85, 187 A. 910 (1936); Kossover v. Willimantic Trust Co., 122 Conn. 166,168,187 A. 907 (1936); Bassett v. Merchants Trust Co., 118 Conn. 586, 595,173 A. 777 (1934); Alex-iou v. Bridgeport People’s Savings Bank, 110 Conn. 397, 402, 148 A. 374 (1930); Huybrechts v. Huybrechts, 4 Conn. App. 319, 321, 494 A.2d 593 (1985).

These cases are distinguishable both as a matter of fact and as a matter of law. As a matter of fact, most of them involve negotiable instruments that are personal obligations, rather than obligations on which a bank engages its own credit, as it does when it issues a teller’s check. The two cases that involve teller’s checks, Kossover v. Willimantic Trust Co. and Alex-iou v. Bridgeport People’s Savings Bank, deal with teller’s checks made payable to the person to whom the bank had been indebted. The plaintiff has cited no Connecticut case, and we have found none, that deems a payment to be merely conditional when the underlying obligation of a bank is exchanged for teller’s checks made payable to the order of a third person.

More important, however, the law governing negotiable instruments has changed with the adoption in Connecticut of the Uniform Commercial Code; General Statutes § 42a-l-101 et seq.; especially articles 3 and 4. Two Code provisions are of particular relevance. One is General Statutes § 42a-4-303 (1), which states: “Any . . . legal process served upon ... a payor bank, whether or not effective under other rules of law to terminate, suspend or modify the bank’s right or duty to pay an item or to charge its customer’s account for the item, comes too late to so terminate, suspend or modify such right or duty if the . . . legal process is received or served . . . after the bank has . . . (d) completed the process of posting the item to the indicated account of the . . . person to be charged therewith or otherwise has evidenced by examination of such indicated account and by action its decision to pay the item . . . . ” The other is General Statutes § 42a-3-802 (1), which states: “Unless otherwise agreed where an instrument is taken for an underlying obligation (a) the obligation is pro tanto discharged if a bank is drawer . . . and there is no recourse on the instrument against the underlying obligor . . . . ”

In combination, these provisions demonstrate that the plaintiff’s garnishment came too late with respect to any alleged claim to the Gonzales savings accounts. The rule contained in § 42a-4-303 (1) applies literally to Gonzales’ certificate of deposit. Such a certificate is an “instrument” under General Statutes § 42a-3-104 (2) (c) and therefore an “item” under General Statutes § 42a-4-104 (1) (g). The defendant “evidenced . . . its decision to pay [this] item” by having Gonzales sign a savings withdrawal slip and and by issuing a teller’s check in the stipulated amount. By operation of § 42a-3-802, the tender and taking of a teller’s check, on which the defendant bank was a drawer, presumptively discharged its obligation on the certificate of deposit. By analogy, the same principles govern the closing out of the Gonzales passbook savings account. That account too was finally settled by having Gonzales execute a savings withdrawal slip and having the defendant assume a direct obligation on its teller’s check. We have often applied Code provisions to commercial transactions that were analogous to those expressly covered by the terms of the Code. New England Yacht Sales, Inc. v. Commissioner, 198 Conn. 624, 630, 504 A.2d 506 (1986); Olean v. Treglia, 190 Conn. 756, 762, 463 A.2d 242 (1983); Conference Center Ltd. v. TRC, 189 Conn. 212, 225, 455 A.2d 857 (1983); Hamm v. Taylor, 180 Conn. 491, 494-95, 429 A.2d 946 (1980). For both the certificate of deposit and the passbook account, Gonzales and the bank executed an exchange of savings account indebtedness for indebtedness defined by the terms of the teller’s checks. In the absence of evidence of an agreement to the contrary, that exchange, which antedated the writ of garnishment, discharged the defendant from its former indebtedness to Gonzales on the savings accounts. E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 69 (b), p. 291.

There remains, however, a second issue. Even if the garnishment came too late to reach the Gonzales savings accounts directly, could it attach instead to the teller’s checks that Gonzales purchased with the proceeds of these accounts? The teller’s checks were still outstanding, unpaid, at the time of the garnishment. The plaintiff maintains that the garnishment was valid because the defendant could then have protected itself from further liability on the teller’s checks by ordering their payment to be stopped, the defendant having made no claim that it did not have a reasonable time to stop payment. We disagree.

At the outset, it is important to note that the defendant, as issuer of the teller’s checks, incurred direct liability for their payment. As in the case of a certified check or a cashier’s check, a teller’s check engages the bank’s own credit and is therefore more of a substitute for cash than is an ordinary personal check. Although the defendant, as the “customer” for whose account the checks were payable, could itself have asked its drawee, the Union Trust Company, to stop payment on the teller’s checks; see General Statutes § 42a-4-403 (l); such a request, if honored, would have left the defendant, as drawer, liable for breach of its engagement as drawer. General Statutes § 42a-3-413. As a drawer, once the instruments had been dishonored, the defendant would have been liable not only to the named payee but to any future holder in due course, such as a depositary bank that cashed the checks. See General Statutes §§ 42a-3-305, 42a-4-208 and 42a-4-209. The defendant would also have been liable to other holders who might not qualify as holders in due course, because the claims of third persons are ordinarily “not . . . available as a defense to any party liable thereon unless the third party himself defends the action for such party.” General Statutes § 42a-3-306 (d).

For these reasons, a purchaser of bank paper does not have a right to insist that an issuing bank order that payment be stopped on a teller’s check that is not made payable to the purchaser. See Fur Funtastic, Ltd. v. Kearns, 120 Misc. 2d 794, 795, 467 N.Y.S.2d 499 (1983); J. Brady, Bank Checks (5th Ed. H. Bailey, 1979) § 20.12, p. 20-30, and § 20.13; J. White & R. Summers, Uniform Commercial Code (2d Ed. 1980) § 17-5, p. 681. For similar holdings in cases involving cashier’s checks, see, e.g., Louis Falcigno Enterprises, Inc. v. Massachusetts Bank & Trust Co., 14 Mass. App. 92, 94-96, 436 N.E.2d 993 (1982), Santos v. First National Bank of New Jersey, 186 N. J. Super. 52, 66-67, 451 A.2d 401 (1982), and Dziurak v. Chase Manhattan Bank, 44 N.Y.2d 776, 777, 377 N.E.2d 474, 406 N.Y.S.2d 30 (1978).

Applying these principles to the facts presented by this case, we conclude that Gonzales, as the purchaser of teller’s checks payable to Rodriquez, could not have compelled the defendant to rescind that transaction through a stop payment order. The defendant could not itself have requested that payment be stopped without exposing itself to liability to Rodriquez or to the bank that ultimately cashed the checks for her.

The rights of the plaintiff as garnisher cannot exceed those of its underlying obligor at the time of the garnishment. The plaintiff cannot assert a facial claim to the teller’s checks because they were made payable to the order of Rodriquez and not of Gonzales, and therefore do not directly evidence an obligation owed by the defendant to Gonzales. The plaintiff has no indirect claim to the teller’s checks because service of the writ of attachment did not compel the defendant to stop payment thereon: owing no such duty to the purchaser of the teller’s checks, the defendant had no such duty to the plaintiff. Any other result would expose the defendant to the risk of double liability, to the plaintiff and to holders of the teller’s checks. A garnishee cannot be compelled to pay the full amount of the original indebtedness twice. Parker, Peebles & Knox, Inc. v. National Fire Ins. Co., 111 Conn. 383, 399, 150 A. 313 (1930).

Whether the plaintiff seeks to assert an interest in the savings accounts that Gonzales once had with the defendant or in the teller’s checks that Gonzales purchased upon liquidation of her savings accounts, the plaintiff’s effort to enforce its writ of garnishment cannot succeed. Since the defendant was not indebted to Gonzales at the time of the garnishment, the defendant was entitled to judgment in the plaintiff’s action in scire facias. The trial court’s ruling to the contrary was in error.

There is error, the judgment of the trial court is set aside and the case is remanded with direction that judgment be entered for the defendant.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 52-329. process of foreign attachment. When the effects of the defendant in any civil action in which a judgment or decree for the payment of money may be rendered are concealed in the hands of his agent or trustee so that they cannot be found or attached, or when a debt is due from any person to such defendant, or when any debt, legacy or distributive share is or may become due to such defendant from the estate of any deceased person or insolvent debtor, the plaintiff may insert in his writ, subject to the provisions of sections 52-278a to 52-278g, inclusive, a direction to the officer to leave a true and attested copy thereof and of the accompanying complaint, at least twelve days before the return day, with such agent, trustee or debtor of the defendant, or, as the case may be, with the executor, administrator or trustee of such estate, or at the usual place of abode of such garnishee; and from the time of leaving such copy all the effects of the defendant in the hands of any such garnishee, and any debt due from any such garnishee to the defendant, and any debt, legacy or distributive share, due or that may become due to him from such executor, administrator or trustee in insolvency, not exempt from execution, shall be secured in the hands of such garnishee to pay such judgment as the plaintiff may recover.”

       “[General Statutes] Sec. 52-381. liability of garnishee; scire facias. If judgment is rendered in favor of the plaintiff in any action by foreign attachment, all the effects in the hands of the garnishee at the time of the attachment, or debts then due from him to the defendant, and any debt, legacy or distributive share, due or to become due the defendant from any garnishee as an executor, administrator or trustee, shall be liable for the payment of such judgment. The plaintiff, on praying out an execution, may direct the officer serving the same to make demand of such garnishee for the effects of the defendant in his hands, and for the payment of any debt due the defendant, and such garnishee shall pay such debt or produce such effects, to be taken and applied on such execution. If he has in any manner disposed of the effects of the principal in his hands when the copy of the writ was left with him, or does not expose and subject them to be taken on the execution, or does not pay to the officer when demanded the debt due the defendant at the time the copy of the writ was left with him, such garnishee shall be liable to satisfy such judgment out of his own estate, as his proper debt, if the effects or debt is of sufficient value or amount; if not, then to the value of such effects or to the amount of such debt. A scire facias may be taken out from the clerk of the court where the judgment was rendered, to be served upon such garnishee, requiring him to appear before such court and show cause, if any, to the contrary; and the plaintiff may require the defendant, and the defendant shall have the right, to disclose on oath whether he has any of the effects of the debtor in his hands, or is indebted to him; and the parties may introduce any other proper testimony respecting such facts. If it is found that the defendant has the effects of such debtor in his hands or is indebted to him, or if he makes default of appearance or refuses to disclose on oath, judgment shall be rendered against him, as for his own debt, to be paid out of his own estate with costs; but, if it appears on the trial that the effects are of less value or the debt of less amount than the judgment recovered against the debtor, judgment shall be rendered to the value of the goods or to the amount of the debt; and, if it appears that the defendant has no effects of such debtor in his hands or is not indebted to him, he shall recover costs.”

       Under our law of garnishment as it existed until the 1983 enactment of the Postjudgment Remedies Act, General Statutes § 52-350a et seq., the customary procedure for adjudication of a disputed garnishment was either a writ of scire facias under General Statutes § 52-381; see Clime v. Gregor, 145 Conn. 74, 76,138 A.2d 794 (1958); or an action for a declaratory judgment under General Satutes § 52-235a. Practice Book § 394. In William M. Raveis & Associates, Inc. v. Kimball, 186 Conn. 329, 335-36, 441 A.2d 200 (1982), we held that a garnishee cannot challenge the validity of a prejudgment remedy except by recourse to these plenary statutory procedures. Under the new act, disputes about the validity of a garnishment may be adjudicated in a hearing in supplemental proceedings that are ancillary to the underlying action. See General Statutes § 52-356c.

       In fairness to the trial court, we note that the defendant’s trial memorandum in opposition to the motion for summary judgment did not contain any references to the applicable provisions of the Uniform Commercial Code.

       “A bank can incur direct liability to the payee of its customer’s check in a variety of ways. First, it can certify the customer’s check. Second, it can issue a cashier’s check (that is, a check on which it is both the drawer and the drawee). Third, it can issue a bank check (that is, a check on which it is the drawer and the drawee is a second bank). In all three cases the bank incurs direct liability to the payee, either as an acceptor on the check or as a drawer.” J. White & R. Summers, Uniform Commercial Code (2d Ed. 1980) § 17-5, p. 681. A teller’s check is another name for a bank check.

       “[General Statutes] Sec. 42a-4-403. customer’s right to stop payment; burden of proof OF LOSS. (1) A customer may by order to his bank stop payment of any item payable for his account but the order must be received at such time and in such manner as to afford the bank a reasonable opportunity to act on it prior to any action by the bank with respect to the item described in section 42a-4-303.”

       “[General Statutes] Sec. 42a-3-413. contract of maker, drawer and acceptor. (1) The maker or acceptor engages that he will pay the instrument acording to its tenor at the time of his engagement or as completed pursuant to section 42a-3-115 on incomplete instruments.
      “(2) The drawer engages that upon dishonor of the draft and any necessary notice of dishonor or protest he will pay the amount of the draft to the holder or to any endorser who takes it up. The drawer may disclaim this liability by drawing without recourse.
      “(3) By making, drawing or accepting the party admits as against all subsequent parties including the drawee the existence of the payee and his then capacity to endorse.”

       “[General Statutes] Sec. 42a-3-305. rights of a holder in due course. To the extent that a holder is a holder in due course he takes the instrument free from (1) all claims to it on the part of any person; and (2) all defenses of any party to the instrument with whom the holder has not dealt except (a) infancy, to the extent that it is a defense to a simple contract; and (b) such other incapacity, or duress, or illegality of the transaction, as renders the obligation of the party a nullity; and (c) such misrepresentation as has induced the party to sign the instrument with neither knowledge nor reasonable opportunity to obtain knowledge of its character or its essential terms; and (d) discharge in insolvency proceedings; and (e) any other discharge of which the holder has notice when he takes the instrument.”

       “[General Statutes] Sec. 42a-4-208. security interest of collecting BANK IN ITEMS, ACCOMPANYING DOCUMENTS AND PROCEEDS. (1) A bank has a security interest in an item and any accompanying documents or the proceeds of either (a) in case of an item deposited in an account to the extent to which credit given for the item has been withdrawn or applied; (b) in case of an item for which it has given credit available for withdrawal as of right, to the extent of the credit given whether or not the credit is drawn upon and whether or not there is a right of charge-back; or (c) if it makes an advance on or against the item.
      “(2) When credit which has been given for several items received at one time or pursuant to a single agreement is withdrawn or applied in part the security interest remains upon all the items, any accompanying documents or the proceeds of either. For the purpose of this section, credits first given are first withdrawn.
      “(3) Receipt by a collecting bank of a final settlement for an item is a realization on its security interest in the item, accompanying documents and proceeds. To the extent and so long as the bank does not receive final settlement for the item or given up possession of the item or accompanying documents for purposes other than collection, the security interest continues and is subject to the provisions of article 9 except that (a) no security agreement is necessary to make the security interest enforceable; and (b) no filing is required to perfect the security interest; and (c) the security interest has priority over conflicting perfected security interests in the item, accompanying documents or proceeds.”

       “[General Statutes] Sec. 42a-4-209. when bank gives value foe purposes of holder in due course. For purposes of determining its status as a holder in due course, the bank has given value to the extent that it has a security interest in an item provided that the bank otherwise complies with the requirements of section 42a-3-302 on what constitutes a holder in due course.”

       Our decision is limited to the issue of whether a purchaser of a teller’s check may compel the issuer to seek a stop payment order. Whether such an issuer may itself opt to request a stop payment order, either for its own benefit or as an accommodation to its customer, is a different issue that can await another day. See L. Lawrence, “Making Cashier’s Checks and Other Bank Checks Cost-Effective: A Plea for Revision of Articles 3 and 4 of the Uniform Commercial Code,” 64 Minn. L. Rev. 275 (1980); J. White & R. Summers, Uniform Commercial Code (2d Ed. 1980) § 17-5, p. 681; J. Brady, Bank Checks (5th Ed. H. Bailey, 1979, and 1984 Sup.) §§ 20.11-20.13, citing many of the relevant cases.

       Our decision is based on the uncontroverted assertions in the affidavits filed at trial that show that the defendant, at the time of the garnishment, neither knew nor had reason to know that Gonzales and Rodriquez might have been the same person.

       For this reason, General Statutes § 42a-3-603 (1) provides: “The liability of any party is discharged to the extent of his payment or satisfaction to the holder even though it is made with knowledge of a claim of another person to the instrument unless prior to such payment or satisfaction the person making the claim either supplies indemnity deemed adequate by the party seeking the discharge or enjoins payment or satisfaction by order of a court of competent jurisdiction in an action in which the adverse claimant and the holder are parties.”


source: Caselaw Access Project

author: Glass, J.

license: Public Domain

text:
    State of Connecticut v. Henry Price
    (13054)
    Peters, C. J., Healey, Callahan, Glass and Hull, Js. •
    Argued November 3
    decision released December 29, 1987

      Sharon M. Elias and Amy L. Klein, certified legal interns, with whom were Michael R. Sheldon and, on the brief, ToddD. Femow, for the appellant (defendant).

      Leah Hawley, deputy assistant state’s attorney, for the appellee (state).
   Glass, J.

After a trial to a jury, the defendant, Henry Price, was convicted of felony murder in violation of General Statutes § 53a-54c. From this judgment the defendant appeals, claiming that the trial court erred in its jury instructions concerning: (1) the strong corroboration element of § 53a-49 (b), an essential element of the attempted robbery theory of felony murder; and (2) the intent element of felony murder. We find no error.

The jury could reasonably have found the following facts: In the early evening of September 4,1982, in the city of Hartford, the defendant along with Mishelle Reddick and Leroy Slater, had been riding in an automobile driven by John Betts. The defendant borrowed a gun from Slater. The defendant and Reddick were dropped off on Barbour Street at about 9 p.m. The defendant was purportedly looking either to buy some cocaine or to find someone who had sold him some “bad dope.” At about the same time the victim and his girlfriend, Deborah Atkins, were walking along Barbour Street. As the two couples approached each other the victim began flashing a baggie containing silver packets and money. The defendant took the gun he had borrowed from Slater out from under his coat and put it to the victim’s left temple and said something, perhaps “freeze” or “hands-up.” The defendant searched the victim, and ordered Reddick to search Atkins. The gun went off, the victim fell to the ground and the defendant searched his pockets. He again ordered Reddick to search Atkins. Nothing was taken from Atkins during either search. The defendant then asked Atkins if she had ever seen him before, and when she said she had not, he and Reddick ran away. Atkins testified that she had not seen the defendant take anything from the victim.

Hartford police officers Tracey Williams and Frank Rudowitz were standing on Barbour Street about seventy-five yards from the scene when they heard a sound “like a firecracker.” As they approached the location, they saw two people leaving the scene running westward across Barbour Street. One was a tall black male, and the other was “shorter” and “ran like a woman.” At the scene the officers found a black male in his twenties lying on the ground with blood spurting from his cheek. As the victim was being placed upon the ambulance stretcher, his right hand fell open, revealing a torn plastic baggie containing silver packets. Williams and Atkins accompanied the victim to the emergency room where he later died. At the hospital, Williams was given the victim’s personal belongings—coins totaling $1.09, an identification card and some personal papers.

Pursuant to a warrant, the defendant was arrested on September 8, 1982, in his sister’s apartment in Springfield, Masachusetts. On October 4, 1982, the defendant was indicted by a grand jury on one count each of the crimes of felony murder, in violation of General statutes §§ 53a-54c, 53a-54a (c), and murder, in violation of General Statutes 53a-54a. The felony murder charge was based upon the predicate crimes of robbery or attempted robbery. The defendant was convicted as charged.

I

The defendant first claims that the trial court’s instructions to the jury violated his constitutional rights by relieving the state of its burden of proving an essential element of the offense of attempted robbery. Although the defendant took no exception to the instruction he now challenges, we will review his claim under the “exceptional circumstances” rule of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), because it “implicates the fundamental constitutional right that the state prove the guilt of an accused beyond a reasonable doubt.” State v. Miller, 202 Conn. 463, 489-90, 522 A.2d 249 (1981); In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Williams, 199 Conn. 30, 34, 505 A.2d 699 (1986); State v. Amarillo, 198 Conn. 285, 299-300 n.9, 503 A.2d 146 (1986).

The gravamen of the defendant’s constitutional attack is that the trial court’s language regarding attempted robbery allowed the jury to dispense with the inquiry whether conduct that could be held to be a substantial step under General Statutes § 53a-49 (a) (2), is also strongly corroborative of the actor’s criminal purpose. The defendant attacks the following language in the court’s instruction: “Examples of conduct which are strongly corroborative of the actor’s criminal purpose in a substantial step are . . . possession of materials to be employed in the commission of the crime . . . which can serve no lawful purpose of the actor under the circumstances . . . . ” (Emphasis added.) The statute, however, reads as follows: “Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) unless it is strongly corroborative of the actor’s criminal purpose. Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law . . . .” (Emphasis added.) General Statutes § 53a-49 (b). Because the state concedes that this instruction was technically inaccurate, we need only address whether the error was harmful.

At the outset, we note that in examining the jury charge, we “ ‘must review the instructions as a whole . . . [and that] “individual instructions are not to be judged in artificial isolation from the overall charge.” ’ ” State v. Usry, 205 Conn. 298, 314-15, 533 A.2d 212 (1987) “ ‘A phrase having a different meaning when culled from the charge will not be regarded as error when there is no “reasonable possibility” that the jury were misled.’ State v. Annunziato, 169 Conn. 517, 532, 363 A.2d 1011 (1975); Magnon v. Glickman, 185 Conn. 234, 247, 440 A.2d 909 (1981).” State v. Usry, supra, 316. After reviewing the entire charge, we are convinced that the jury was adequately instructed on the elements of attempted robbery.

Although the use of the questioned language was erroneous, the trial court clearly explained the corroboration principle of attempted robbery both before and after the misstatement. Immediately following the challenged statements, the trial court instructed the jury that possession of materials, such as a gun, could constitute a substantial step “if you were to find that that is what the defendant did for the purpose of engaging in this crime.” We find that the jury instructions “ ‘ “[gave] the jurors a clear understanding of the elements of the crime charged, and [afforded] them proper guidance for their determination of whether those elements were present.” ’ ” Id.

Furthermore, the likelihood that the jurors misper-ceived the instructions was attenuated by the strength of the state’s case. The facts, which are set forth in greater detail above, indicate that the jury could have found beyond a reasonable doubt the defendant’s guilt of the predicate offense of attempted robbery: The defendant acquired a gun less than one hour before the shooting. Upon encountering the victim, the defendant held the gun to the victim’s head and fired the gun. Immediately thereafter the defendant searched the victim’s pockets and ordered his companion to search the victim’s girlfriend. Because these acts, in and of themselves, are strongly corroborative of the defendant’s criminal purpose, it is not reasonably possible that the instruction complained of could have affected the jury’s verdict.

II

The defendant’s second claim is that the trial court’s instructions on criminal intent unconstitutionally invaded the province of the jury and relieved the state of its burden of proving that element beyond a reasonable doubt. Again, the defendant did not except to this portion of the charge at trial. As this portion of the charge implicates the defendant’s constitutional right to a fair trial, it is reviewable under State v. Evans, supra, as discussed above. We find no error.

The defendant claims that a portion of the charge regarding the inferences that may be drawn by the jury with respect to the evidence before them was improper, and objects to language such as the jury had a “duty to draw those inferences ... if they are reasonable and logical inferences.” He argues that the use of the words “reasonable and logical” permitted the jury to find intent by a standard lower than proof beyond a reasonable doubt. We first note that the trial court did not at any time instruct the jury on a standard of proof less than “beyond a reasonable doubt.” Furthermore, following the challenged phrase, the trial judge properly instructed the jury that “in order for the accused to be found guilty of the charge of murder, you must find beyond a reasonable doubt that he had an intent to cause the death of [the victim]. If you do not find beyond a reasonable doubt that the accused had that intent, then he is not guilty of murder.” We have recently held that “[i]n the course of a charge on drawing inferences ... a court may correctly instruct a jury that it has the prerogative to draw inferences that are ‘reasonable and logical.’ Such an instruction, at least when qualified ... by a caveat that both the ultimate inference of guilt and the facts essential to that inference must be proven beyond a reasonable doubt, does not dilute the constitutional standard of proof in a criminal case.” State v. Silano, 204 Conn. 769, 773-74, 529 A.2d 1283 (1987); State v. McDonough, 205 Conn. 352, 533 A.2d 857 (1987). We find that the charge properly instructed the jury regarding the standard of proof.

The defendant next argues that this portion of the jury charge was erroneous because it directed the jury to find intent on the basis of a conclusive presumption. The defendant objects to portions of the charge in which the following language was used: “[I]f there are inferences that you can draw from those facts to determine intention, you are entitled and it is your duty to draw those inferences . . . .” Despite the language regarding the jury’s duty to draw inferences, we find that when the charge is read as a whole, the instructions made clear to the jury that it was their prerogative to draw inferences, but that they were not required to do so. We note that similar language was recently upheld in State v. Silano, supra, where the trial court instructed the jury that “ ‘you are asked to draw whatever inference or conclusion is reasonable and logical . . . . If it is reasonable and logical, you should draw it, but you don’t have to.’ ” Id., 772. In this charge, the trial judge instructed the jury that it “should draw all fair and reasonable inferences from the facts and circumstances” and that it “may draw any reasonable inference from the facts proven.” This language clearly indicates that the jury had the option to draw inferences from the defendant’s conduct, but that it was not required to so do.

We find no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-54c. felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, sexual assault in the first degree with a firearm, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”

       “[General Statutes] Sec. 53a-49. criminal attempt: sufficiency of conduct; renunciation as defense, (a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
      “(b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) unless it is strongly corroborative of the actor’s criminal purpose. Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law: (1) Lying in wait, searching for or following the contemplated victim of the crime; (2) enticing or seeking to entice the conemplated victim of the crime to go to the place contemplated for its commission; (3) reconnoitering the place contemplated for the commission of the crime; (4) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed; (5) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances; (6) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances; (7) soliciting an innocent agent to engage in conduct constituting an element of the crime.
      “(c) When the actor’s conduct would otherwise constitute an attempt under subsection (a), it shall be a defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”


author: Arthur H. Healey, J.

text:
    Carlos Aspiazu v. Mario Orgera
    (13125)
    Peters, C. J., Healey, Shea, Callahan and Glass, Js.

      Argued September 29
    decision released December 29, 1987

      Mark F. Katz, for the appellant (defendant).

      Robert R. Petrucelli, for the appellee (plaintiff).
   Arthur H. Healey, J.

The plaintiff, Carlos Aspiazu, brought this action for damages against the defendant, Mario Orgera, alleging an intentional assault and/or a negligent contact. The jury found for the plaintiff on the intentional assault count and awarded $28,000 in damages. The defendant has appealed to this court, alleging that the trial court improperly admitted a medical report and that the court erred in its instruction to the jury regarding unemployment compensation benefits awardéd to the plaintiff. We find no error.

The jury could reasonably have found the following facts: The plaintiff had worked for one year as an assistant engineer and superintendent under the supervision of the defendant. The two parties had been at odds in the year previous to the alleged assault. On March 18, 1980, the plaintiff reported for work and was using a heavy broom to sweep water off the roof of a building under construction in Stamford. The defendant approached the plaintiff, told him in a loud voice that he was fired, and then struck him in the mouth with his fist. The defendant continued to throw punches, hit the plaintiff with the broom, and then tried to push him off the roof. The plaintiff managed to run away and call the police.

The police took the plaintiff to St. Joseph Hospital where he was treated and released. The hospital record indicates that the plaintiff suffered a lacerated lower lip, a lump on his forehead and two loosened front teeth. The plaintiff later had to have those two teeth removed and had a bridge inserted by Dr. Herbert Kweskin, a dentist. He also saw Dr. Simon Goldfarb, a psychiatrist, during the months immediately following the assault.

The defendant raises two claims on appeal: (1) the trial court erred in admitting the doctor’s report of Goldfarb because the report contained inadmissible hearsay and it failed to establish causation; and (2) the trial court erred by instructing the jury that the evidence of the receipt of unemployment compensation by the plaintiff was to be used by the jury only for impeachment purposes.

I

The record reveals that Goldfarb treated the plaintiff from March 24, 1980, to August 25, 1980. On March 14, 1981, Goldfarb prepared a written report that described the history and treatment of the plaintiff. At the time of trial, Goldfarb had retired and was living in New Mexico and neither the plaintiff nor the defendant attempted to procure his attendance at the trial or to take his deposition. Instead, the plaintiff sought to introduce the doctor’s report under General Statutes § 52-174 (b), which permits the admission into evidence of any “treating” physician’s report as a business entry. The defendant objected to the report in its entirety and also made objections to various portions of the report that resulted in numerous redactions by the trial court.

A

The defendant first objects to the admission into evidence of certain hearsay testimony contained in Gold-farb’s report. The defendant asserts that Goldfarb had not met the plaintiff prior to the assault and therefore all of his report “must necessarily have been based upon information provided by the plaintiff or others.”

Before specifically addressing the defendant’s first argument, it is instructive to examine General Statutes § 52-174 (b). That statute permits a signed doctor’s report to be admitted as a business entry. The business records statute, General Statutes § 52-180, allows the admission of any writing as evidence of the act or event it describes provided the record was made in the regular course of business and that it was the regular course of business to make such a writing within a reasonable time after the occurrence of the event in question. Section 52-174 (b) creates a presumption that the doctor’s signature is genuine and that the report was made in the ordinary course of business. See Struckman v. Burns, 205 Conn. 542, 534 A.2d 888 (1987). Thus, once the statutory requirement that the report be signed by a treating physician is met, the evidence in that report is admissible and has the same effect as a business entry. This does not mean, however, that the entire report is automatically admitted. State v. Daniels. 180 Conn. 101, 105, 429 A.2d 813 (1980). In the area of hospital records, this court has held that since the business of a hospital is treating patients, information that is not relevant to the medical treatment of the patient is inadmissible. Kelly v. Sheehan, 158 Conn. 281, 285, 259 A.2d 605 (1969) (identity of driver who struck patient is not admissible); Maggi v. Mendillo, 147 Conn. 663, 667, 165 A.2d 603 (1960); D’Amato v. Johnston, 140 Conn. 54, 61, 97 A.2d 893 (1953). Information that is relevant to the treatment of the patient, however, is admissible. See, e.g., D'Amato v. Johnston, supra, 61-62 (drunkenness is medically germane to treatment and therefore admissible). “Section 52-174 (b) in no way eliminates a plaintiffs burden of establishing the relevancy , of the expert opinions expressed [in the report].” Struckman v. Burns, supra, 554. We hold that doctors’ reports should be treated similarly to hospital records regarding relevancy problems. Once the report is ruled admissible under the statute, any information that is not relevant to medical treatment is subject to redaction by the trial court.

Turning to the defendant’s claim of hearsay, we first recognize that once a report qualifies as a business record, its proponent is not required to show the source of information for each item contained in the record. The burden is on the objecting party to specify objections to the inadmissible parts of the report. Mucci v. LeMonte, 157 Conn. 566, 570, 254 A.2d 879 (1969); C. Tait & J. LaPlante, Connecticut Evidence (1976) § 11.14 (f). The defendant made an initial objection to the admission of the report as a whole. In response, the trial court indicated that it was going to admit the report on the basis of the statute but that it would consider any of the defendant’s objections to specific portions of the report. The defendant made numerous suggestions to the court with the result that the court redacted a number of irrelevant sentences.

“It is the general rule that an expert’s opinion is inadmissible if it is based on hearsay evidence. See cases such as Vigliotti v. Campano, 104 Conn. 464, 465,133 A. 579 [1926]. One exception to this rule, and the only one bearing on this appeal, is the exception which allows a physician to testify to his opinion even though it is based, in whole or in part, on statements made to him by a patient for the purpose of obtaining from him professional medical treatment or advice incidental thereto. And, of course, he may also testify to such statements.” Brown v. Blauvelt, 152 Conn. 272, 274, 205 A.2d 773 (1964); see State v. Esposito, 192 Conn. 166,175, 471 A.2d 949 (1984). In Brown, we also said: “Most exceptions to the hearsay rule are permitted because it is believed that safeguards are present which at least approach those given by the opportunity for cross-examination existing where hearsay testimony is not involved. See cases such as Ferguson v. Smazer, 151 Conn. 226, 231, 196 A.2d 432 [1963], In the case of the exception we are considering, the safeguard is the patient’s desire to recover his health, which it is considered will restrain him from giving inaccurate statements to a physician employed to advise or treat him.” Brown v. Blauvelt, supra, 275. Goldfarb’s report satisfies the requirements of § 52-174 (b): it is the signed report of a treating physician in an action for personal injuries. The information in the report is relevant on the issue of the plaintiff’s damages and the information falls under the hearsay exception for statements of bodily condition made to a treating physician. State v. Esposito, supra; Brown v. Blauvelt, supra, 274; C. Tait & J. LaPlante, supra, § 11.12.

The defendant renewed his objection to the report in its entirety but that objection was overruled by the trial court. On appeal, the defendant does not identify in his brief any specific hearsay statements that he claims were improperly admitted. Moreover, at oral argument he neither identified them nor asserted any reasons why they were inadmissible. We note that the trial court redacted a number of statements dealing with the plaintiff’s past history. The remainder of the report concerns general background information about the plaintiff, a description of the course of treatment, and a diagnosis. All of this information was pertinent to Goldfarb's treatment of the plaintiff. The trial court's actions were correct and the defendant’s claim that hearsay statements were improperly admitted into evidence has no merit.

B

The defendant next asserts that Goldfarb’s report failed to establish the necessary causal relationship between the alleged assault and the subsequent treatment and damage sustained by the plaintiff. This argument also has no merit.

“To be entitled to damages a plaintiff must establish a causal relationship between the injury and the physical condition which he claims resulted from it. Bates v. Carroll, 99 Conn. 677, 679,122 A. 562 [1932].” Boland v. Vanderbilt, 140 Conn. 520, 525, 102 A.2d 362 (1953). This causal connection must rest upon more than surmise or conjecture. Id. “A trier is not concerned with possibilities but with reasonable probabilities. Richardson v. Pratt & Whitney Mfg. Co., 129 Conn. 669, 672, 30 A.2d 919 [1943].” Id. The compensation must not be “a matter of guesswork or speculation but must be based upon results which would reasonably and probably flow from the injuries the plaintiff received at the time of the accident.” Id., 523.

Expert testimony is often used to establish the existence, extent or cause of an injury or disease. See, e.g., Healy v. White, 173 Conn. 438,445,378 A.2d 540 (1977) (epilepsy and brain damage); State v. Hanna, 150 Conn. 457, 460, 191 A.2d 124 (1963) (wounds inflicted by human); Boland v. Vanderbilt, supra (cerebral thrombosis); Sickmund v. Connecticut Co. 122 Conn. 375, 379-80,189 A. 876 (1937) (fall caused by diabetic upset). Under some circumstances, this court has held that expert testimony is required to establish causation. See Collette v. Collette, 177 Conn. 465, 471, 418 A.2d 891 (1979) (miscarriage); but see Gannon v. Kresge Co., 114 Conn. 36,38,157 A. 541 (1931). One area where expert medical testimony is regarded as essential is medical malpractice. Levett v. Etkind, 158 Conn. 567, 574, 265 A.2d 70 (1969); Snyder v. Pantaleo, 143 Conn. 290, 294-95,122 A.2d 21 (1956). “[T]he medieal effect upon the human system of the infliction of injuries, is generally not within the sphere of the common knowledge of a lay witness . . . . ” Collette v. Collette, supra. The expert testimony can be presented in a number of ways: “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 on a hypothetical question.” Boland v. Vanderbilt, supra, 525. Although useful, expert testimony is not always mandatory if the medical condition is obvious or common in everyday life. State v. Orsini, 155 Conn. 367, 372, 232 A.2d 907 (1967). This is especially true if one is testifying about his own physical condition. Id. (complainant testified to the fact that she was pregnant). Expert testimony may also not be necessary to establish causation if the plaintiff’s evidence creates a probability so strong that a jury can form a reasonable belief without the aid of any expert opinion. Gannon v. Kresge Co., supra; C. Tait & J. LaPlante, supra, § 7.16 (c). One area where expert testimony is not always required is mental suffering. Leabo v. Leninski, 2 Conn. App. 715, 727, 484 A.2d 239 (1984); Buckley v. Lovallo, 2 Conn. App. 579, 589, 481 A.2d 1286 (1984).

We now turn to the issue of whether Goldfarb’s report should have been excluded because it failed to establish causation. The report relates in detail the feelings of the plaintiff toward the defendant after the incident. The report shows, inter alia, that the plaintiff first sought psychiatric help six days after the alleged assault, that he was obsessed with getting revenge against the defendant, that he both feared and hated the defendant, that he displayed anger, depression, irritability, insomnia and anxiety, and that the diagnosis was characterized as “[p]ost-traumatic neurosis.” Although the defendant’s brief does not articulate his claim in any more detail than a conclusory assertion, the apparent thrust of the defendant’s argument is that the medical report does not explicitly articulate the “reasonable medical probability” standard that is relied upon so often in direct testimony by medical experts. See Ulma v. Yonkers General Hospital, 53 App. Div. 2d 626, 384 N.Y.S.2d 201 (1976).

An expert opinion cannot be based on conjecture or surmise but must be “reasonably probable.” Witkowski v. Goldberg, 115 Conn. 693, 696,163 A. 413 (1932). Any expert opinion that describes a “condition” as possible or merely fifty-fifty is based on pure speculation: Davis v. P. Gambardella & Son Cheese Corporation, 147 Conn. 365, 373,161 A.2d 583 (1960). The problem with Goldfarb’s report is not that it is expressed in terms of possibilities rather than probabilities but that it makes no statement expressly concluding that the alleged assault was responsible for the plaintiff’s treatment for mental distress. Although we approve generally of the “reasonable medical probability” standard, we also note that no “talismanic words” are mandatory. See Healy v. White, supra, 444 (testifying to odds and percentages is acceptable); Boland v. Vanderbilt, supra; 31 Am. Jur. 2d § 44 (1967 and 1987 Sup.).

While we do not believe that it is mandatory to use “talismanic words” or “the particular combination of magical words represented by the phrase ‘reasonable degree of medical certainty [or probability]’ ”; Matott v. Ward, 48 N.Y.2d 455, 463, 399 N.E.2d 532, 423 N.Y.S.2d 645 (1979); there is no question that, to be entitled to damages, a plaintiff must establish the necessary causal relationship between the injury and the physical or mental condition that he claims resulted from it. Boland v. Vanderbilt, supra. Before the trial court could permit the jury to consider the Goldfarb report as probative on the issue of causation, the court had to be persuaded that the report gave reliable evidence that the doctor was reasonably confident of the relationship between the plaintiffs injury and his psychiatric diagnosis and treatment. We are satisfied that the Goldfarb report meets this standard. See Matott v. Ward, supra, 459-60. We think the Goldfarb report, signed by him as a physician and on his letterhead as a physician, could reasonably have been interpreted by the jury, under instructions that we observe have not been challenged, to meet that acceptable standard of reliability typified by the “reasonable degree of medical certainty [or probability]” demanded in such cases.

Goldfarb’s report characterized the plaintiffs condition as “[p]ost-traumatic neurosis.” A jury could reasonably have found that the trauma referred to is the alleged assault. The report also described the incident when the defendant allegedly struck the plaintiff and how the plaintiff feared, hated and sought revenge against the defendant. The plaintiff, on direct examination, made it clear that the reason that he sought psychiatric help was the alleged assault by the defendant. A fair reading of the report as a whole makes it clear that the alleged assault was the precipitating event that created the condition for which Goldfarb treated the plaintiff for approximately five months thereafter. Goldfarb was the treating medical physician throughout. He had the advantage of a relatively prompt postattack opportunity for his treatment, observations and evaluation of his patient. He prescribed medication for him. The plaintiff appeared to Goldfarb “to have been an active, well adjusted and secure young man.” The report notes that there were some symptoms of nervousness, irritability, sleeplessness and fear “for more than three months” prior to the attack by the defendant and while this could be claimed to have preexisted the attack, the plaintiff himself was cross-examined on this at the trial and denied he ever told that to Goldfarb. The defendant, had he chosen, could have had the plaintiff examined, deposed Goldfarb or produced his own expert; he did none of these. Again, while the report is not a model of clarity and while it lacks the “single verbal straightjacket” formulation; see Matott v. Ward, supra, 460; that the defendant espouses, it passes muster under the circumstances of this case.

The trial court has broad discretion in determining the relevancy of evidence. Delott v. Roraback, 179 Conn. 406,414, 426 A.2d 791 (1980); State v. Schaffer, 168 Conn. 309, 317, 362 A.2d 893 (1975). Its ruling will only be overturned if there is an abuse of discretion. State v. Hogan, 180 Conn. 182, 183, 429 A.2d 462 (1980). We hold that the report satisfies any threshold question of relevance and that the requisite causal connection was sufficient to submit that issue to the jury. Once the report is determined to be relevant, the weight of that report is a question for the jury. Expert testimony is considered, weighed and tested like any other evidence. State v. Kelly, 77 Conn. 266, 275, 58 A. 705 (1904); C. Tait & J. LaPlante, supra, § 7.16 (e). The trier is not bound by the opinions of experts and “ ‘the fact that a witness testifies as an expert does not compel the acceptance of his testimony as true.' Nixon v. Gniazdowski, 145 Conn. 46, 48,138 A.2d 796 [1958].” Pischitto v. Waldron, 147 Conn. 171, 177, 158 A.2d 168 (1960). The jury was free to credit the medical report of Goldfarb with whatever weight it desired. The trial court reminded the jury that the doctor was not present for cross-examination. The defendant’s argument that the trial court improperly admitted Goldfarb’s medical report is unavailing.

II

The defendant’s second claim is that the trial court erred in instructing the jury that the plaintiff’s application for and receipt of unemployment compensation was only to be used by the jury for purposes of impeachment, and not for mitigation of damages.

The plaintiff testified that he applied for and received unemployment compensation from March 24,1980, to November 1,1980. Under the unemployment compensation law in Connecticut; General Statutes § 31-235; an applicant must be available and looking for work in order to collect unemployment benefits. The plaintiff also testified that he was mentally unable to work during that period. The defendant asserts that the plaintiffs testimony that he was unable to work was inconsistent with his receipt of unemployment benefits and that this circumstance creates an exception to the “Collateral Source Rule.” That rule proscribes the use of payments from a collateral source to an injured plaintiff to mitigate damages. Apuzzo v. Seneco, 178 Conn. 230, 233, 423 A.2d 866 (1979); see also Kurta v. Probelske, 324 Mich. 179,188, 36 N.W.2d 889 (1949). The defendant also claims that the trial court erroneously restricted the defendant’s submission of evidence as to the amount of unemployment compensation received by the plaintiff and also that the instruction that the benefits should not be considered by the jury in its determination of damages was erroneous.

The defendant, at oral argument before us, conceded that unemployment benefits are properly considered a collateral source, yet he maintained that no instruction whatsoever should have been given about the receipt of unemployment benefits. There is no merit to the defendant’s argument. Although the defendant asserted one claim in his brief and another at oral argument, the record shows that no exception to the jury charge was made at the trial to alert the trial court to either of the claims now made on appeal. The defendant at trial excepted to the charge to the jury because the trial court refused to charge that the jury could use the receipt of unemployment benefits to assess the plaintiff’s mental and physical ability to work. In any event, since the defendant did not raise his current objections in the trial court, we decline to entertain those claims. DeFonce Construction Corporation v. State, 198 Conn. 185, 186 n.1, 501 A.2d 745 (1985). Failure to take a precise exception to the trial court’s charge renders the claim unreviewable on appeal. Practice Book § 315; Logan v. Greenwich Hospital Assn., 191 Conn. 282, 300, 465 A.2d 294 (1983).

There is no error.

In this opinion the other justices concurred.

       General Statutes § 52-174 (b) provides: “In all actions for the recovery of damages for personal injuries or death, pending on October 1,1977, or brought thereafter, any party offering in evidence a signed report and bill for treatment of any treating physician, dentist, chiropractor, osteopath, natureopath or podiatrist may have the report and bill admitted into evidence as a business entry and it shall be presumed that the signature on the report is that of the treating physician, dentist, chiropractor, osteopath, natureopath or podiatrist and that the report and bill were made in the ordinary course of business.”

       General Statutes § 52-180 provides: “admissibility of business entries and photographic copies, (a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.
      “(b) The writing or record shall not be rendered inadmissible by (1) a party’s failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party’s failure to show that such persons are unavailable as witnesses. Either of such facts and all other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility.
      “(c) Except as provided in chapter 3, if any person in the regular course of business has kept or recorded any memorandum, writing, entry, print, representation or combination thereof, of any act, transaction, occurrence or event, and in the regular course of business has caused any or all of them to be recorded, copied or reproduced by any photographic, photostatic, microfilm, microcard, miniature photographic or other process which accu-tately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless its preservation is otherwise required by statute. The reproduction, when satisfactorily identified, shall be as admissible in evidence as the original in any judicial or administrative proceeding, whether the original is in existence or not, and an enlargement or facsimile of the reproduction shall be likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of court. The introduction of a reproduced record, enlargement or facsimile shall not preclude admission of the original.
      “(d) The term ‘business’ shall include business, profession, occupation and calling of every kind.”

       On direct examination, the following took place:
      “Q. Well, all right. Okay. Just about you, your anxiety. Is this a result of this incident with Mr. Orgera?
      “A. Yes, it was.
      “Q. Have you ever had this before, this anxiety?
      “A. Never, no.”

       General Statutes § 31-235 provides: “benefit eligibility conditions; qualifications; involuntary retirees, (a) An unemployed individual shall be eligible to receive benefits with respect to any week only if it has been found that (1) he has made claim for benefits in accordance with the provisions of section 31-240 and has registered for work at the public employment bureau or other agency designated by the administrator within such time limits, with such frequency and in such manner as the administrator may prescribe, provided failure to comply with this condition may be excused by the administrator upon a showing of good cause therefor; (2) except as provided in subsection (b) of this section, he is physically and mentally able to work and is available for work and has been and is making reasonable efforts to obtain work, provided he shall not be considered to be unavailable for work solely because he is attending a school, college or university as a regularly enrolled student during his separation from employment, within the limitations of subdivision (6) of section 31-236, and provided further, he shall not be considered to be lacking in his efforts to obtain work if, as a student, he restricts such efforts to employment which does not conflict with his regular class hours as a student, and provided the administrator shall not use prior ‘patterns of unemployment’ of the individual to determine whether he is available for work; (3) he has been paid wages by an employer who was subject to the provisions of this chapter during the base period of his current benefit year in an amount at least equal to forty times his benefit rate for total unemployment: Provided an unemployed individual who is sixty-two years of age or older and is involuntarily retired under a compulsory retirement policy or contract provision shall be eligible for benefits with respect to any week, notwithstanding subdivisions (1) and (2) of this section, if it is found by the administrator that he has made claim for benefits in accordance with the provisions of section 31-240, has registered for work at the public employment bureau, is physically and mentally able to work, is available for work, meets the requirements of subdivision (3) of this section and has not refused suitable work to which he has been referred by the administrator. For purposes of subdivision (2) of this section, “patterns of unemployment” means regularly recurring periods of unemployment of the claimant in the years prior to his filing the claim in question.
      “(b) The provisions of subdivision (2) of subsection (a) of this section relating to the eligibility of students for benefits shall not be applicable to any claimant who attended a school, college or university as a regularly enrolled full-time student at any time during the two years prior to his date of separation from employment, unless such claimant was employed on a full-time basis, as determined by the administrator, for the two years prior to such date.”

       The defendant, throughout his brief, makes a number of conclusory assertions with no citation to any authority. See Hayes v. Smith, 194 Conn. 52, 66 n.12, 480 A.2d 425 (1984) (“[assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court”). Neither his brief nor his appendix recites the questions, objections, offers of proof, claimed ground of admissibility, ruling, exceptions, requests to charge, etc., that should be available for review. When raising evidentiary issues on appeal, all briefs should identify clearly what evidence was excluded or admitted, where the trial counsel objected and preserved his rights and why there was error. Practice Book § 4065 (d) (3); Osborne v. Osborne, 2 Conn. App. 635, 641, 482 A.2d 77 (1984). We note that we have carefully scrutinized the record to determine if the defendant’s claims that were properly preserved have any merit.

       Our holding in this case that unemployment compensation benefits fall under the collateral source rule should not be read as an approval of the plaintiff’s apparently inconsistent claims regarding his availability for work. The plaintiff testified that he was unable to work in the months following the accident. When he applied for unemployment compensation benefits, the plaintiff, under General Statutes § 31-235, had to state that he was available and looking for work throughout the eight months that he received benefits.

       The defendant excepted to the charge as follows: “The third exception pertains to the use of the evidence pertaining to a claim made for umemployment compensation, the fact that compensation benefits of that type were received by the plaintiff. The Court indicated that it can be used to impeach the claim of availability or unavailability of the plaintiff. The defendant feels that it can also be used to show that the plaintiff was mentally and physically able to work during that period of time.”