Czelzewicz v. Turansky

• Decision Date: 20 June 1969
• Docket Number: No. CV,CV
• Citation: 258 A.2d 555,5 Conn.Cir.Ct. 567
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: Frank J. CZELZEWICZ v. Theodore TURANSKY. 13-6512-2534.

Page 555

258 A.2d 555

5 Conn.Cir.Ct. 567

Frank J. CZELZEWICZ v. Theodore TURANSKY.

No. CV 13-6512-2534.

Circuit Court of Connecticut, Appellate Division.

Argued May 5, 1969.

Decided June 20, 1969.

George D. Royster, Jr., Hartford, for appellant (defendant).

Thaddeus Maliszewski, Hartford, for appellee (plaintiff).

KINMONTH, Judge.

The plaintiff brought this action to recover for damages to his motor vehicle, alleged to have been sustained as a result of the negligence of the defendant. The court rendered judgment for the plaintiff, and the defendant has appealed, claiming the court erred (1) in applying the doctrine of res ipsa loquitur, (2) in failing to correct the finding by adding facts which were admitted or undisputed, (3) in that the conclusions are not supported by the subordinate facts, and (4) in refusing to grant the defendant's motion to dismiss the case. ¹ The defendant has not briefed his second assignment of error, and it is therefore deemed to be abandoned. Fruchtman v. Manning, 156 Conn. 500, 502, 242 A.2d 723.

The defendant's brief and oral argument were almost entirely devoted to the discussion of the doctrine of res ipsa loquitur, and we therefore deem it necessary to make certain observations. The defendant asserts that the plaintiff did not set forth the doctrine in his complaint and therefore cannot take advantage of it. It is not necessary specifically to allege the doctrine, for if the case is a proper one for the application of the doctrine of res ipsa loquitur, the plaintiff, by pleading the particular cause of the accident, in no way loses his right to rely thereon. Schurgast v. Schumann, 156 Conn. 471, 479, 242 A.2d 695. The plaintiff at no time raised the doctrine, but the court in its memorandum of decision did apply the doctrine. The court subsequently made a finding but made no mention of the doctrine of res ipsa loquitur, and the memorandum of decision was not made a part of the finding. The memorandum of decision cannot be considered a record judgment. The judgment file is the only formal written statement which expresses the decision rendered. Harris v. First National Bank & Trust Co.,139 Conn. 749, 752, 97 A.2d 260. The defendant claims that the court erred in stating, in the memorandum of decision, a proposition of law not pertinent to any issue in the case. As shown by the judgment and the finding, the statement had no influence on the court's conclusions. In addition, error cannot be predicated on an expression of opinion, in a memorandum of decision, as to the facts or the law of the cause unless the memorandum of decision is made a part of the finding. City of Derby v. DiYanno, 412 Conn. 708, 714, 118 A.2d 308. We may consult the memorandum of decision to understand the finding better, but it cannot take the place of the finding. Gitlitz v. Davis, 146 Conn. 280, 281, 150 A.2d 213; Murphy v. Dantowitz,142 Conn. 320, 324, 114 A.2d 194. If there is a variance between the memorandum of decision and the finding, the latter will prevail. Stults v. Palmer, 141 Conn. 709, 710, 109 A.2d 592. The cause is to be decided on the facts found, not on those contained in the memorandum of decision.

The following facts were found by the court: On August 10, 1965, at approximately 9 p.m., the plaintiff was operating his motor vehicle in a northerly direction on Sage Park Road in the town of Windsor. As the plaintiff approached the section of the street in front of 18 Sage Park Road, he saw two cars parked on the east side of the street. The southerly parked car was a Volkswagen, and the northerly parked car was the defendant's 1965 Chevrolet. The defendant's unoccupied motor vehicle rolled from the easterly side of the street, where it had been parked earlier in the evening by the defendant, into the path of the plaintiff's motor vehicle and caused damage to the plaintiff's motor vehicle. The defendant's motor vehicle had been parked on a grassy area on the easterly side of Sage Park Road which was raised about three inches above the amesite paved portion of the street. When the plaintiff looked into the defendant's motor vehicle, after the collision, the gear was in neutral. There were no tire marks on Sage Park Road after the collision. On these facts, the court concluded that the plaintiff was not negligent and that the defendant was negligent in not putting the gear in park position, in not properly setting his brake and in parking on an area higher than the traveled portion of the road.

The conclusions of the court must be tested by the finding, not by the evidence. The court's conclusions must prevail unless they are legally or logically...