Bansak v. Pawelczyk

• Decision Date: 27 September 1977
• Citation: Bansak v. Pawelczyk, 378 A.2d 569, 173 Conn. 520 (Conn. 1977)
• Parties: William BANSAK et al. v. Walter PAWELCZYK et al.
• Court: Connecticut Supreme Court

Page 569

378 A.2d 569

173 Conn. 520

William BANSAK et al. v.Walter PAWELCZYK et al.

Supreme Court of Connecticut.

Argued June 15, 1977.

Decided Sept. 27, 1977.

Daniel Shepro, Bridgeport, for appellant(named defendant).

Richard K. Mulroney, Bridgeport, for appellee(named plaintiff).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and SPEZIALE, JJ.

PER CURIAM.

This negligence action was brought by the plaintiffs to recover damages for personal injuries arising out of an alleged assault by the defendants.The underlying facts are that the plaintiffs, William Bansak and his partner, entered the defendantWalter Pawelczyk's yard to make a delivery, a dispute arose, and a fight ensued in which Bansak, his partner, Pawelczyk, his son Joseph, and, subsequently, a neighbor were all involved.The important issue for the jury was to determine who had started the fight.They found that Walter Pawelczyk was responsible, that Joseph was not, and awarded damages to both Bansak and his partner.The defendant's motion to set aside the verdict was granted only with regard to the partner, the trial court finding that there was no possible basis in the evidence to support that verdict.The motion to set aside the verdict in favor of Bansak was denied.The defendant appeals from that judgment, claiming error in the trial court's denial of his motion to set aside Bansak's verdict, its refusal to grant a mistrial, and its rulings on several evidentiary matters.

The defendant argues on appeal that the court erred in not setting aside the verdict for Bansak because the jury could not have reasonably and consistently found that one defendant was liable while the other was not.Such an inconsistency is not in itself grounds for disturbing a verdict.Hauf v. Pickett, 140 Conn. 169, 172, 98 A.2d 818(1953).In deference to both the jury system and a trial court's opportunity to evaluate the evidence before it, the action of the trial court should be sustained unless there is a clear abuse of discretion.Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 555, 561, 316 A.2d 394(1972);Birgel v. Heintz, 163 Conn. 23, 26-27, 301 A.2d 249(1972);Camp v. Booth, 160 Conn. 10, 12-13, 273 A.2d 714(1970).The defendant has failed to show such an abuse.

The next claim of error is based on the trial court's refusal to admit medical testimony regarding the nature and extent of the defendant's injuries.As the court noted, however, in sustaining the plaintiff's objection to the testimony, the defendant had raised neither a counterclaim nor a special defense, and, thus, the only issue before the court was whether the defendants had instigated the fight.The defendant's offer of proof failed to reveal anything which would have been material to the issue, and the court was justified in excluding the testimony.

The third and fourth claims of error have to do with references to Pawelczyk's arrest for breach of the peace.During the course of his examination of one of the investigating police officers, the plaintiff's attorney asked whether anyone had been arrested.Out of the presence of the jury, defense counsel moved for a mistrial on the grounds that, even though the question was not answered, the inference to be drawn from the question and the defendant's objection was highly prejudicial.The motion was denied, but the plaintiff's counsel was cautioned against pursuing the issue, and the jury was instructed to disregard any references to an arrest.

It is within the trial court's discretion to determine whether the opportunity for a fair trial is sufficiently remote that a mistrial should be granted.State v. Hafner, 168 Conn. 230, 245-46, 362 A.2d 925(1975);State v. Grayton, 163 Conn. 104, 112, 302 A.2d 246(1972), cert. denied, 409 U.S. 1045, 93 S.Ct. 542, 34 L.Ed.2d 495;State v. Bausman, 162 Conn. 308, 312, 294 A.2d 312(1972);Ferino v. Palmer, 133 Conn. 463, 466, 52 A.2d 433(1947).In the case before us, the court was within its discretion in denying the motion for a mistrial, and it must be assumed that "any possible harm" was avoided when it made the cautionary instruction to the jury.Weimer v. Brock-Hall Dairy Co., 131 Conn. 361, 367, 40 A.2d 277(1944);State v. Rogers, 143 Conn. 167, 177-78, 120 A.2d 409(1956), cert. denied, 351 U.S. 952, 76 S.Ct. 850, 100 L.Ed. 1476.

The other claim of error which relates to the arrest has to do with the admission of the police report, which, according to the defendant, contained only the plaintiff's version of the incident, and, further, referred explicitly to the arrest and booking of the defendant.The police report itself, which was made in the regular course of business by the police officer who had been sent to investigate the incident, was properly admissible as evidence under General Statutes § 52-180.Parts of the report were illegible and at the request of defense counsel, the report was read aloud in the presence of the jury.In this manner the jury learned of the defendant's arrest and booking, for the...