Cristini v. Griffin Hosp..

• Decision Date: 09 January 1948
• Citation: 57 A.2d 262,134 Conn. 282
• Court: Connecticut Supreme Court
• Parties: CRISTINI v. GRIFFIN HOSPITAL.

134 Conn. 282

57 A.2d 262

CRISTINI v. GRIFFIN HOSPITAL.

Supreme Court of Errors of Connecticut.

Jan. 9, 1948.

Appeal from Superior Court, New Haven County; Wynne and Daly, Judges.

Action by Americo Cristini, administrator of the estate of Richard Cristini, deceased, against the Griffin Hospital to recover damages for the death of plaintiff's intestate. A demurrer to plaintiff's reply was overruled and the issues were tried to the jury.

From verdict and judgment for plaintiff, defendant appeals and plaintiff filed a plea in abatement to the appeal.

Plea in abatement dismissed, error, and new trial ordered.

Cyril Coleman, of Hartford, for appellant (defendant).

Alfonse C. Fasano, of New Haven, for appellee (plaintiff).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

The appellee filed a plea in abatement which was dismissed:

PER CURIAM.

The defendant appealed from the refusal of the trial court to set aside a verdict in favor of the plaintiff and from the judgment. It obtained an extension of time for filing its request for a finding and draft finding to a day certain and for filing a transcript of the evidence until it filed its assignments of error, and later it was granted a further extension of time to a day certain in which to file its request for a finding and draft finding. These were ultimately filed, the trial court made its finding and the defendant filed its assignments of error. The errors assigned included one seeking to strike out several paragraphs from the finding and others which might be presented to the court upon the record, without any correction of the finding. Some days after the assignments were filed, the defendant sent a transcript of the evidence to the clerk, who refused to file it because of objection made by the plaintiff. Subsequently, on February 15, 1947, the defendant made a motion to the trial court that it certify the evidence and order it printed, and on the same day the plaintiff filed a plea in abatement to the appeal. On February 19, 1947, the trial court granted the defendant's motion of February 15.

The plea in abatement was based substantially on the ground that the evidence was not filed with the assignments of error or within any proper extension of time for filing it, as required by § 346 of the Practice Book where corrections are sought in a finding; the defendant answered, alleging the granting of its motion of February 15; and the plaintiff demurred to that answer. Under the rules of appellate procedure as they now stand, a trial court may in general grant an extension of time for filing papers after the time fixed by the rules has expired, and action upon a motion filed after that time constitutes an extension by implication; Rossi v. Jackson Co., 120 Conn. 456, 464, 181 A. 539; and the certification of evidence filed after the permissible time in itself constitutes an extension. Gross Bros. Sales Corporations v. Liebmann, Liebmann & Salant, 103 Conn. 750, 753, 131 A. 593. The provision in the amendments to Practice Book, § 335, adopted in 1943 and 1945, that extensions of time to take an appeal can be granted only before the expiration of the time theretofore limited applies only to the taking of the appeal. State ex rel. Baskin v. Bartlett, 132 Conn. 623, 624, 46 A.2d 335. In this case, the granting of the defendant's motion that the trial court certify the evidence and order it made a part of the record was sufficient to make effective the filing and certification of the evidence. We have recently point out that even after an appeal is taken it is for the trial court to take the steps necessary to perfect it, and have held that the filing of a plea in abatement does not prevent it from performing that function. Walsh v. Laffen, 131 Conn. 358, 360, 40 A.2d 689. The answer to the plea in abatement was on sound ground. Moreover, if the plaintiff had been correct in his position, that would not have justified the abatement of the appeal because, even though the defendant couldnot then claim corrections of the finding, its appeal would properly present other issues for our determination. Distin v. Bradley, 83 Conn. 466, 471, 76 A. 991. The plaintiff might have made a motion to this court to strike out the assignment of error seeking such corrections and to strike the evidence from the record. State v. Kreske, 130 Conn. 558, 560, note, 36 A.2d 389.

The demurrer to the answer is overruled and the plea in abatement is dismissed.

JENNINGS, Judge.

The determinative issue on this appeal is the effect to be accorded to the existence of insurance on the immunity of a charitable hospital from tort liability. The question arose in this way: The plaintiff, as administrator, charged the hospital and its servants and agents with negligence causing the death of his infant son. The defendant filed a special defense alleging that it was a charitable corporation. The plaintiff pleaded in reply thereto that the defendant carried insurance indemnifying it and its property, funds and assets against all liability for negligence and agreed to limit his recovery to the indemnity procurable under the insurance policy. He also alleged that by carrying insurance and thus protecting its trust funds and other property from depletion the defendant was estopped from claiming charitable immunity. A demurrer to the reply was filed by the defendant and overruled. On the trial these pleadings were read to the jury. The court charged, over the defendant's objections and without mentioning charitable immunity, that the defendant was liable for negligence, and it duly excepted. The ruling and the charge were assigned as error. The plaintiff admitted in open court that the defendant was a charitable corporation and the defendant admitted that it was insured. The insurance question was recently raised in Edwards v. Grace Hospital Society, 130 Conn. 568, 570, 36 A.2d 273; A-191 Rec. & Briefs, p. 245, back of p. 252; but it was not necessary to the decision and was not decided.

The plaintiff's claim has a certain meritorious basis, for, except as to premiums, the funds of the hospital are protected to the extent of the collectible insurance when it is insured. Nevertheless, it is not valid. If...