Alteiri v. Colasso

• Citation: 168 Conn. 329,362 A.2d 798
• Court: Supreme Court of Connecticut
• Decision Date: 15 April 1975
• Parties: Ann ALTEIRI et al. v. John COLASSO.

Page 798

362 A.2d 798

168 Conn. 329

Ann ALTEIRI et al. v. John COLASSO.

Supreme Court of Connecticut.

April 15, 1975.

Edward F. Halloran, Jr., Hartford, with whom, on the brief, was Isadore M. Mackler, Standord, for appellant (defendant).

Monroe Silverman, Stanford, with whom, on the brief, was John J. Graubard, Stanford, for appellees (plaintiffs).

Before HOUSE, C.J., and LOISELLE, MacDONALD, BOGDANDKI and LONGO, JJ.

LOISELLE, Associate Justice.

This action is one for battery brought by a minor, the plaintiff Richard Alteiri, to recover for injuries he suffered, and by his mother, the named plaintiff, to recover for expenses incurred. The complaint alleges that while the minor plaintiff was playing in the back yard of a home at which he was visiting, the defendant threw a rock, stone or other missile into the yard and struck the minor plaintiff in the eye and '(a)s a result of said battery by the defendant, the plaintiff Richard Alteiri suffered severe, paintful and permanent injuries.'

The date of the alleged battery was April 2, 1966. The writ, summons and complaint were dated March 18, 1969, and filed on March 20, 1969. The defendant answered the allegations of the complaint by leaving the plaintiffs to their proof except for admitting the minority of the plaintiff Richard Alteiri. On the first day of trial the defendant, over the objection of the plaintiffs, was allowed to plead as a special defense that the action 'was not brought within one year from the act of neglect complained of and is therefore barred by the statute of limitations.' Act the close of evidence and prior to the commencement of argument, the court brought to the attention of counsel the fact that no evidence had been offered with respect to the special defense of the Statute of Limitations. Counsel for the defendant moved to 'reopen' in order to offer proof of the special defense by way of judicial notice of the pleadings or by offer of evidence. The court denied the defendant's motion and later charged the jury to disregard the special defense of the statute of limitations.

Six interrogatories were submitted to the jury. Two interrogatories were answered in the affirmative as follws: 'On April 2, 1966, did the defendant, John Colasso, throw a stone which struck the plaintiff, Richard Alteiri, in the right eye?' Answer: 'Yes.' '(W)as that stone thrown by John Colasso with the intent to scare any person other than Richard Alteiri?' Answer: 'Yes.' The jury answered 'No' to four other questions concerning whether the defendant had intended to strike either the minor plaintiff or any other person and whether he had thrown the stone either negligently or wantonly and recklessly. A plaintiffs' verdict was returned. The defendant has appealed from the judgment rendered.

The defendant assigns error in the court's refusing to charge on the applicability of the one-year Statute of Limitations to a personal injury action arising out of negligence or reckess or wanton misconduct, in its charging the defense of this statute of limitations out of the case, and in its overruling the defendant's motion to open to offer proof relative to this special defense. Whether the court was in error as claimed by the defendant need not be determined. The jury specifically found, as evidenced by their answers to the interrogatories, ¹ that the conduct of the defendant was neither negligent nor reckless and wanton but that it was intentional. Consequently, the Statute of Limitations relied upon by the defendant, then General Statutes § 52-584, ² by its terms does not apply to this action; rather General Statutes § 52-577 which limits actions founded upon a tort to be brought within three years from the date of the act or omission complained of would govern. The defendant could not have been harmed by the actions of the court in denying the motion to open or in removing the defense of the one-year Statute of Limitations from the consideration of the jury. Accordingly, whether the court committed error in this respect need not be determined.

Error is assigned in the court's denial of the defendant's motions to set aside the verdict and for judgment notwithstanding the verdict. The defendant claims that the jury could not have reasonably and logically rendered a verdict under our law when in their answers to the interrogatories they expressly found that the defendant did not throw the stone with intent to strike either the minor plaintiff or any other person and did not throw the stone either negligently or wantonly and recklessly. In this state an actionable assault and battery may be one committed wilfully or voluntarily, and therefore intentionally; one done under circumstances showing a reckless disregard of consequences; or one committed negligently. Russo v. Porga,141 Conn. 706, 708-9, 109 A.2d 585; Lentine v. McAvoy, 105 Conn. 528, 531, 136 A. 76. By their answers to the interrrogatories it is clear that they jury found that the battery to the minor plaintiff was one committed wilfully. The issue to be determined on this appeal is whether a jury upon finding that the defendant threw the stone with the intent to scare someone other than the one who was struck by the stone can legally and logically return a verdict for the plaintiffs for a wilful battery.

In Rogers v. Doody, 119 Conn. 532, 534, 178 A. 51, in discussing the distinction between reckless disregard and wilfulness the court stated that a 'wilful and malicious injury is one inflicted intentionally without just cause or excuse. It does not necessarily involve the ill will or malevolence shown in express malice. Nor is it sufficient to constitute such an injury that the act resulting in the injury was intentional in the sense that it was the voluntary action of the person involved. Not only the action producing the injury but the resulting injury must be intentional.' The defendant claims, in reliance upon this principle, that as there was no intention either to injure the minor plaintiff or to put him in apprehension of bodily harm there could be no recovery for a wilful battery. The intention of the defendant was not only to throw the stone-the act resulting in the injury was intentional-but his intention was also to cause a resulting injury that is, an apprehension of bodily harm. If the stone had struck the one whom the defendant had intended to frighten, the defendant would have been liable for a battery. The statement in Rogers that the 'resulting injury must be intentional' would be satisfied as the injury intended was the apprehension of bodily harm and the resulting bodily harm was the direct and natural consequence of the intended act. Restatement (Second), 1 Torts § 13; ³ Weisbart v. Florh, 260 Cal.App.2d 281, 290, 67 Cal.Rptr. 114.

It is not essential that the precise injury which was done be the one intended. 1 Cooley, Torts (4th Ed.). § 98. An act designed to cause bodily injury to a particular person is actionable as a battery not only by the person intended by the actor to be injured but also by anothe who is in fact so injured. ⁴ Restatement (Second), 1 Torts § 13; Singer v. Marx,144 Cal.App.2d 637, 301 P.2d 440; Smith v. Moran, 43 Ill.App.2d 373, 193 N.E.2d 466; McGee v. Vanover, 148 Ky. 737, 147 S.W. 742; Talmage v. Smith,101 Mich. 370, 59 N.W. 656; Carnes v. Thompson, 48 S.W.2d 903 (Mo.); Morrow v. Flores, 255 S.W.2d 621 (Tex.Civ.App.); Bannister v. Mitchell,127 Va. 578, 104 S.E. 800; Prosser, Torts (4th Ed.) § 8; 1 Harper & James, Torts § 3.3, [168 Conn. 335] p....