Brown v. Connecticut Light & Power Co.

• Decision Date: 13 May 1958
• Citation: 141 A.2d 634,145 Conn. 290
• Court: Connecticut Supreme Court
• Parties: Mildred M. BROWN v. CONNECTICUT LIGHT & POWER COMPANY et al. Supreme Court of Errors of Connecticut

Page 634

141 A.2d 634

145 Conn. 290

Mildred M. BROWN v. CONNECTICUT LIGHT & POWER COMPANY et al.

Supreme Court of Errors of Connecticut.

May 13, 1958.

Morgan P. Ames, Stamford, with whom were Francis J. McNamara, Jr., Stamford, and, on the brief, Raymond T. Benedict and John F. Spindler, Stamford, for appellant (plaintiff).

Walter F. Torrance, Jr., Waterbury, for appellees (named defendant et al.).

Before BALDWIN, DALY, KING, MURPHY and MELLITZ, ^* JJ.

KING, Associate Justice.

The plaintiff, as the owner of property on the easterly side of Round Hill Road in Greenwich, seeks injunctive relief against, and damages for, the violation of a claimed covenant in an agreement. By the agreement, a prior owner of the property granted an easement for the installation of a subway or underground conduit for the accommodation of electric wires and cables.

The agreement was entered into on June 7, 1915, by and between I. N. Phelps Stokes and his wife, Edith M. Phelps Stokes, 'party [sic] of the first part,' and the United Electric Light and Water Company, hereinafter referred to as the lighting company, the Western Union Telegraph Company, hereinafter referred to as the telegraph company, and the New York Telephone Company, hereinafter referred to as the telephone company, as the parties of the second part. At the time, Mr. Stokes was the sole owner of what is now the plaintiff's property. He predeceased his wife, who succeeded to his ownership. Both died sometime prior to September 12, 1944, on which date Mrs. Stokes's executors conveyed to the plaintiff the main portion of the property, which alone is material to the issues in this case. The defendant Connecticut Light and Power Company, hereinafter referred to as the defendant, is the successor, by corporate merger consummated August 3, 1917, to the lighting company.

Prior to December 20, 1906, the telegraph company desired to erect and maintain a telegraph line, consisting of poles, wires, cables and other incidental equipment, in front of the premises then owned by Mr. Stokes. On December 20, 1906, an agreement was entered into with him, Mrs. Stokes joining as his wife, for the erection of a line of twenty-five open wires and two aerial cables in front of the property. Subsequently, whether with the permission of the Stokeses does not appear, the telephone company used the telegraph company's poles in front of the property for its telephone line. Sometime thereafter, the lighting company wished to make use of the same poles for its power line, but permission so to do was refused by Mr. Stokes.

Thereafter, on June 7, 1915, the agreement involved in this case was executed. In the preamble it was recited that the telegraph company maintained poles and overhead wires pursuant to the 1906 agreement; that the telephone company maintained an aerial cable on the poles under an agreement with the telegraph company; that the lighting company was desirous also of using the poles for its power line; and that the Stokeses wished to have the poles and wires in front of the property removed.

The plaintiff seeks to have added to the finding a large number of paragraphs of the draft finding on the ground that the facts stated in them were admitted or undisputed facts. To secure an addition on this ground, it is necessary for an appellant to point to some part of the appendix, the pleadings, or an exhibit properly before us, which discloses that the appellee admitted that the fact in question was true or that its truth was conceded to be undisputed. Maltbie, Conn.App.Proc., § 158. That a fact was testified to and not directly contradicted by another witness is wholly insufficient. Ibid.; Practice Book, § 397. The trier is the judge of the credibility of witnesses. Banks v. Adelman, 144 Conn. 176, 179, 128 A.2d 534, and cases cited therein. A further requirement for such an addition to the finding is that the particular portion of the appendix, pleadings or exhibit, as the case may be, relied upon as requiring the addition, be pointed out in the appellant's brief. Maltbie, op. cit., § 328. The plaintiff has failed to show that she is entitled to any of the additions sought which are material to the case. Nor are any of the paragraphs of the finding which the plaintiff seeks to eliminate, on the ground that they were found without evidence, of materiality.

The plaintiff offered in evidence a letter dated May 20, 1919, from the telegraph company to the lighting company, complaining that although the latter company had agreed, by the instrument of June 7, 1915, to place its facilities in the conduit, it had not removed the wires 'which we permitted you to place on our poles [in front of the Stokes property] as temporary attachments,' and that the removal of the poles in 'fulfillment of our obligations under the contract' had thereby been blocked. The letter was claimed on two grounds: first, that it showed that the lighting company had failed to carry out its claimed agreement to put its wires underground, and secondly, that it showed the interpretation by the telegraph company of the terms of the agreement. The first ground was on its face without merit since there is no issue as to any violation of any agreement during the lifetime of the Stokeses. The court excluded the letter on the ground that the telegraph company was not a party to this suit and that its letter was not an admission binding on the defendant. On the foundation as laid, the letter was a statement out of court by one not a party to this action, offered to affect the defendant, not itself a party to the contract. Whether the letter would have been admissible on some different ground or with some further foundation is a question not presented to, nor ruled upon by, the trial court, and therefore we do not consider it. Johnson v. Rockaway Bus Corporation 145 Conn. 204, 210, 140 A.2d 708. The ruling was not erroneous.

Prior to trial, the plaintiff filed in court a notice to the defendant to produce an order of the public utilities commission promulgating certain rules governing the defendant in trimming trees where it maintained overhead wires in Greenwich. At the trial, the defendant did not have either the original order or a copy of it in court, and the plaintiff asked the court to direct the defendant to produce its copy of the order. This the court refused to do. An order to produce can be entered by the court in the course of a trial as to any document then in court and in the possession of the party against whom the order to produce is entered, in accordance with the procedure described in Banks v. Connecticut R. & Lighting Co., 79 Conn. 116, 119, 64 A. 14. Since neither the original order nor the defendant's copy of it was in court, an order to produce would have been wholly improper. For any document in possession of the defendant and not actually in court, the plaintiff should have issued a subpoena duces tecum. Ibid.; Hurley v. Connecticut Co., 118 Conn. 276, 284, 172 A. 86. Furthermore, in this particular situation the plaintiff could have procured a certified copy of the order, if in fact there ever was such an order, from the public utilities commission and, if it was relevant, asked to have it judicially noticed by the court under the rule of Roden v. Connecticut Co., 113 Conn. 408, 415, 155 A. 721, and Nichols v. Nichols, 126 Conn. 614, 620, 13 A.2d 591. No reason appears for the unusual procedure followed by the plaintiff, especially since the original order would be in the hands of the public utilities commission, not in the hands of the defendant. Lomas & Nettleton Co. v. Waterbury, 122 Conn. 228, 234, 188 A. 433. There was no error in the court's refusal to enter an order to produce.

The plaintiff then offered a clipping from 'The New York Times' purporting to set forth the substance of the order. Since there was no proper attempt to obtain the best evidence of the order, which in this case would have been either the original order or a duly certified copy of it, there was no right to introduce secondary evidence of any sort in proof of it. City Bank v. Thorp, 78 Conn. 211, 218, 61 A. 428; Woicicky v. Anderson, 95 Conn. 534, 536, 111 A. 896; State v. Jones, 132 Conn. 682, 683, 47 A.2d 185. The court's exclusion of the newspaper clipping was correct. In saying this, we do not wish to be understood as in any way implying that the clipping would have constituted proper secondary evidence had secondary evidence been admissible. See cases such as City of Hartford v. Maslen, 76 Conn. 599, 616, 57 A. 740; Russo v. Metropolitan Life Ins. Co., 125 Conn. 132, 139, 3 A.2d 844; Cameron v. Peck, 37 Conn. 555, 557; In the...