Casalo v. Claro

• Decision Date: 01 November 1960
• Citation: 147 Conn. 625,165 A.2d 153
• Court: Connecticut Supreme Court
• Parties: Ralph CASALO v. Angelo E. CLARO. Supreme Court of Errors of Connecticut

Page 153

165 A.2d 153

147 Conn. 625

Ralph CASALO v. Angelo E. CLARO.

Supreme Court of Errors of Connecticut.

Nov. 1, 1960.

Philip H. Smith, Bridgeport, for appellant (plaintiff).

Edwin H. Hall, Bridgeport, with whom, on the brief, was Ivan A. Hirsch, Bridgeport, for appellee (defendant).

Before BALDWIN, C. J., and KING, MURPHY and SHEA, JJ. ^*

KING, Associate Justice.

A station wagon owned and operated by the plaintiff collided with a motor vehicle operated by the defendant. The accident took place in or near the intersection of Brookside Drive and the Boston Post Road in Darien at about 8 o'clock on the morning of December 11, 1956. The plaintiff seeks recovery of damages for injuries to his person and to his station wagon, claimed to to have been caused by the defendant's negligence. The jury rendered a verdict for the defendant and the court refused to set it aside. The plaintiff has appealed from the judgment.

The plaintiff's only assignments of error relate to two rulings on evidence. Both rulings were made during cross-examination of the defendant, who in his direct testimony had given his version of the circumstances of the collision. The defendant, in response to questions, testified that he had discussed the case within his family but not with anyone outside the family except his attorneys. He was then asked whether at any time he had admitted that he was in any way at fault in connection with the accident. He objected but assigned no ground. The plaintiff claimed the question but assigned no ground. The jury were excused and in their absence some further colloquy occurred, the nature of which is not disclosed in the finding. The defendant then renewed his general objection to the question and the court sustained the objection.

A ruling on evidence must be tested by the finding. Practice Book § 405; Facey v. Merkle, 146 Conn. 129, 131, 148 A.2d 261, 70 A.L.R.2d 358. Since the defendant's objection was general and the plaintiff assigned no ground of claimed admissibility, the question is presented as to whether the exclusionary ruling was erroneous and properly reviewable under the provisions of Practice Book § 155, the material portions of which are quoted in the footnote. ¹ We are thus confronted with the proper construction to be accorded to the provisions of Practice Book § 155 when evidence is excluded upon a mere general objection and the offering party at no time assigns any ground in support of the claim of admissibility. See Petrillo v. Kolbay, 116 Conn. 389, 395, 165 A. 346.

The forerunner of what is now Practice Book § 155 appeared as § 116 in the Rules of Court of 1899 and as § 116 in the Practice Book of 1908. It provided that '[w]henever an objection to the admission of testimony is made, counsel shall state the ground of the objection succinctly and in such form as he desires it to go upon the record, before any discussion or argument is had thereon.' This rule, changed materially, became § 151 of the Practice Book of 1922, § 158 of the Practice Book of 1934, and § 155 of the Practice Book of 1951. The vital difference between the earlier rule and the present one is that the latter includes a requirement that 'counsel shall state the grounds upon which [the proffered evidence] is claimed' as an alternative to the requirement that 'counsel shall state the grounds * * * upon which objection is made.' Neither requirement becomes operative until 'an objection [whether general or particular] to the admission of evidence is made.' The change in the rule is no more matter of form, and in the present case is not only applicable but decisive.

Under this rule, when an objection is made to the admission of evidence, one of two things is called for. Either the party making the objection should accompany it with a statement of the specific ground or grounds on which the objection is based or the party offering the evidence should state the specific ground or grounds on which he claims the evidence is admissible. Of course each party may make such a statement. Whether the offering party will avail himself of the opportunity to make a statement in support of the admissibility would ordinarily depend upon whether the objecting party had stated his ground of objection with sufficient accuracy and specificity to form a satisfactory basis, from the offering party's standpoint, for a reviewable ruling. Andreozzi v. Rubano, 145 Conn. 280, 284, 141 A.2d 639; La Voie v. Marshall, 141 Conn. 481, 687, 109 A.2d 508; McCarthy v. Maxon, 134 Conn. 170, 173, 55 A.2d 912. An exception, if one is taken, is to the court's ruling on the claim or claims so made and is so reviewed in this court. La Voie v. Marshall, supra; Petrillo v. Kolbay, supra. This is true whether the ruling admits or excludes the evidence.

Had either party complied with the provisions of § 155 of the Practice Book, the attention of the court would have been directed to the precise ruling it was being called upon to make. See State v. Tryon, 145 Conn. 304, 309, 142 A.2d 54. The finding discloses no attempt by either party to comply with the rule or to furnish the court with any clear statement of claim with respect to the admissibility or inadmissibility of the pending question. See State v. DeGennaro, 147 Conn. 296, 304, 160 A.2d 480. The plaintiff attempts to ignore and by-pass the alternative, in the rule, requiring a statement of claim from him, apparently on the ground that the defendant furnished none under his general objection. Thus, the plaintiff in effect claims that the whole burden is on the defendant to state a proper ground of inadmissibility. This was probably incorrect even under the 1908 rule. See Dunham v. Cox, 81 Conn. 268, 273, 70 A. 1033. It is certainly incorrect under the rule in its present amended form. If a party in such a situation as that confronting the plaintiff wishes to except to a ruling excluding evidence which was objected to only generally, he must avail himself of the provisions of the rule and state his claim of admissibility. Since the plaintiff made no attempt so to do, the ruling excluding the evidence cannot be held to constitute reversible error. Petrillo v. Kolbay, supra. All this is but an obvious application of the fundamental rule of appellate procedure in the review of evidential rulings, whether resulting in the admission or exclusion of evidence, that an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him. Sears v. Curtis, 147 Conn. 311, 316, 160 A.2d 742; Guerrieri v. Merrick, 145 Conn. 432, 434, 143 A.2d 644; DeCarufel v. Colonial Trust Co., 143 Conn. 18, 21, 118 A.2d 798.

Nor does the fact that the ruling occurred during cross-examination relieve the plaintiff from the obligation of giving the court some inkling as to the ground of admissibility claimed. Fahey v. Clark, 125 Conn. 44, 48, 3 A.2d 313, 120 A.L.R. 517. The Fahey case, on which the plaintiff heavily relies, does not reveal any lack of certainty in the statement of the ground of admissibility of the question excluded. Id., 45, 3 A.2d 313. Rather, the basic error found was in the court's requiring the cross-examiner to make a statement, in the nature of an offer of proof, as to what the witness would answer if the question was allowed. As the cross-examiner explained to the court, he could not honestly make such a statement since he did not know, and had no means of ascertaining, what the witness' answer would be. There is an obvious difference between a statement of the ground on which a question is claimed to be admissible or inadmissible, as required by Practice Book § 155, and an offer of proof as to what a witness will say if he is permitted to answer a question to which objection has been interposed. Thus, an offer of proof is specifically authorized by rule 43(c) of the federal rules of civil procedure, 28 U.S.C.A. It is not specifically authorized under our rules, and in most ordinary instances is unnecessary if counsel complies with § 155. 53 Am.Jur. 116 § 132, 88 § 99, 89 § 155. 53 Am.Jur. 116 § of Adjustment, 142 Conn....