Anderson & McPadden, Inc. v. Tunucci

• Decision Date: 11 February 1975
• Court: Connecticut Supreme Court
• Parties: ANDERSON & McPADDEN, INC., et al. v. Otto TUNUCCI et al.

Page 873

356 A.2d 873

167 Conn. 584

ANDERSON & McPADDEN, INC., et al. v. Otto TUNUCCI et al.

Supreme Court of Connecticut.

Feb. 11, 1975.

Paul V. McNamara, Bridgeport, for appellants (defendants.)

T. Paul Tremont, Bridgeport, for appellee (third-party plaintiff), with whom was Ronald J. Habansky, Bridgeport, for appellee (named plaintiff).

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

COTTER, Associate Justice.

While working as a beer salesman for Anderson & McPadden, Inc., Ernest Rosiak, who intervened as a third-party plaintiff, was injured on June 7, 1968, closing the door to the basement of an establishment wherein the defendants, Otto and Anna Tunucci, did business as Otto's Legion Restaurant. The named plaintiff, Rosiak's employer, obligated to pay the applicable benefits under the Workmen's Compensation Act, brought suit to recover damages pursuant to its right of subrogation. After a trial to a jury, a verdict was returned in favor of the plaintiffs in the amount of $71,000; the defendants have taken this appeal from the decision of the court denying their motion to set aside the verdict and from the judgment rendered thereon. They have assigned error in the court's charge to the jury and in an evidentiary ruling which denied admission of certain testimony on cross-examination of a witness for the plaintiffs. Other assignments of error have been specifically abandoned.

I

We consider first the assignment of error addressed to the charge. The correctness of the charge is determined by the claims of proof of the parties. Practice Book § 635; Gosselin v. Perry, 166 Conn. 152, 155, 348 A.2d 623; Maltbie, Conn.App.Proc. § 145. The finding discloses that the plaintiffs offered evidence to prove the following facts: At the time of the incident which gave rise to the action below, Rosiak was employed as a route salesman for the named plaintiff. One of the stops on his route was the defendants' restaurant. On June 7, 1968, after taking a reading of the inventory in the basement of this restaurant, Rosiak went up the stairs and proceeded to close the trap door. A sixty-pound effort was required to lift this door. However, one of the two hinges which controlled the door had beend etached from the floor for a long period of time, so that the door was allowed to move freely. The defendants' permittee, Bernard Tunucci, who was in control of the restaurant on behalf of the defendants, knew of this condition but had never warned Rosiak. As Rosiak lowered the door, it went out of control and came down upon him with great force. The pain he experienced was excruciating and he was unable to straighten up. The following day, his wife tried, without success, to contact the family physician. She then called Dr. Thedore J. Dombroski, a chiropractor, who treated Rosiak for two-and-a-half to three months thereafter. This treatment consisted of manipulation or adjustment which is an attempt to expand the area of the back where the disc spaces have compressed or narrowed. Dr. Dombroski ultimately concluded that his treatment had been ineffective, and on August 13, 1968, referred the patient to a neurosurgeon, Dr. Stanley M. Fromm. Dr. Fromm had earlier operated on him in 1962 in response to complications stemming from a fall in 1952. The treatment in 1968 led to surgery involving Rosiak's third lumbar disc. A final operation involving the third and fifth discs was performed in 1970. All three operations-in 1962, 1968, and 1970-concerned disc problems in the lumbar spine. According to Dr. Fromm, the ruptured or degenerated third lumbar disc was caused by the lifting injury. His examination and tests of the patient conducted in 1970 as a result of further complaints revealed a degeneration in the third and fourth lumbrosacral discs and a degeneration of the third and fifth lumbar discs; this degeneration was also related to or caused by the trauma which Rosiak suffered because of the lifting injury. As a result of the disc operation, Dr. Fromm ascribed a 15 percent disability to Rosiak.

The court found that the defendants offered evidence to prove the following: According to Dr. Dombroski, there is a possibility that any therapy, including manipulation, improperly applied, will damage a patient. On July 18, 1968, Dr. Dombroski stated in a report that Rosiak 'might be able to do light work within a week or so.' On cross-examination, Dr. Fromm stated that Rosiak apparently did very well after his first operation, that he really was not disabled at all, and that such a patient would ordinarily be given a three or four percent disability. Dr. Fromm further testified that the terms 'degenerative' or 'degenerative charges' are used very loosely, and that degenerative changes, slipped disc, and ruptured disc are all the same. His examination in 1962, moreover, revealed degeneration and protrusion of the fifth lumbar disc, while the discogram of 1970 did not reveal any protrusion, only degeneration. Dr. Fromm added that at the time he operated on the fifth lumbar disc, in 1962, he removed that disc and it grew back. In addition, in 1968 he removed the third lumbar disc and, he testified, it, too, grew back. He stated that there was no way to determine whether the disc grew back properly or whether a new problem with the disc had developed in 1970; a disc can degenerate because of no accident at all; it can be caused by any off-balance lifting or even by stepping off a high curb. In apparent contradiction of Dr. Fromm's testimony, Dr. McEllis K. Glass, an orthopedic surgeon, who had examined Rosiak, testified on the defendants' behalf that, once a disc is removed, a scar forms over a period of days and weeks. This scar is about a third of the size of what was there originally, and is designed to serve the same function, but is never as competent as the disc which has been removed; compared to the original disc, the scar lacks the same hydraulic qualities, does not have the same resistance, and does not have the same capacity to tolerate compression as would a normal disc. Finally, Dr. Glass testified that the lifting of the heavy door by Rosiak would not in and of itself cause a disc to herniate.

The defendants, in their exceptions to the court's charge to the jury and in their brief on appeal, have maintained that the court erred in presenting to the jury a detailed summary of the evidence introduced in support of the plaintiffs' case, without also mentioning certain evidence advanced by the defendants tending to prove that Rosiak's claimed permanent disability was due to the fall in 1952 and not to the lifting injury in 1968. They claimed that the 'crux of the defense centered around those inconsistencies' found in testimony of Dr. Fromm and Dr. Dombroski, who testified for the plaintiffs, and Dr. Glass, whose testimony was offered by the defendants.

The court's review of the evidence in its charge to the jury is subject to the overriding consideration that its comments be fair and that they not mislead the jury, so that injustice is not done to either party. Enlund v. Buske, 160 Conn. 327, 331, 278 A.2d 815; Szlinsky v. Denhup,156 Conn. 159, 163, 239 A.2d 505; Ladd v. Burdge, 132 Conn. 296, 298, 43 A.2d 752. We have indicated that the nature and extent of the trial court's comments on the evidence, within constitutional limitations concerning trail by jury, must largely depend on the facts involved in a particular case and the manner in which it has been tried; and the matter of commenting on evidence rests in the trial court's sound discretion. Heslin v. Malone, 116 Conn. 471, 477, 165 A. 594. It has been well stated that '(t)he function of a judge's charge is to enable the jury to find its way through the maze of conflicting testimony, to sift the relevant from the irrelevant, to weight wisely, and to judge dispassionately. . . . But in drawing together the threads of evidence and marshaling the claims on both sides he must exercise a scrupulous regard for relevance and proportion. Misplaced emphasis here and omission there may work more damage than any outspoken comment. By his summing-up a judge reveals his estimate of relative importance.' Frankfurter, The Case of Sacco and Vanzetti, p. 65. Similarly, this court has noted that in the trial court's summary of the evidence '(t)he case, upon the evidence and the law applicable thereto, should be stated with the purpose of giving the jury as clear and correct a view of its various aspects as possible, and with an effort to preserve the proper balance between the various considerations which may be involved.' State v. Rathbun, 74 Conn. 524, 527, 51 A. 540, 541. It is true, of course, that '(t)he degree to which reference to the evidence may be called for lies largely in the discretion of the court'; Gorham v. Farmington Motor Inn, Inc., 159 Conn. 576, 583, 271 A.2d 94, 98; and that the court is 'not bound to discuss particular items of the testimony, such comment being discretionary.' Gosselin v. Perry, 166 Conn. 152, 165, 348 A.2d 623. But the summary of evidence in a court's charge will not meet the ultimate test of fairness if it directs attention to particular features of the evidence in such a way as to single them out and give them an undue prominence. See, e.g., cases collected in 1 Reid's Bronson Instructions to Juries, 308, 309, § 106 (repl. ed.); James, Civil Procedure § 7.14, p. 292 n. 33. 'Instructions should not be so drawn as to direct the attention of the jury too prominently to the facts in the testimony on one side of the case, while sinking out of view, or passing lightly over, portions of the testimony on the other side which deserve equal attention.' State v. Rome, 64 Conn. 329, 339, 30 A. 57, 60; Maltbie, Conn.App.Proc. § 89. '(N)or should certain claimed facts be accorded a comparative weight or bearing beyond that to which they are legitimately entitled.' Kast v. Turley, 111 Conn. 253, 258, 149 A. 673, 675; Distin v....