Facey v. Merkle

• Decision Date: 27 January 1959
• Citation: 148 A.2d 261,70 A.L.R.2d 358,146 Conn. 129
• Court: Connecticut Supreme Court
• Parties: , 70 A.L.R.2d 358 Eugene L. FACEY, Administrator (Estate of John W. Facey) v. Francis J. MERKLE et al. Supreme Court of Errors of Connecticut

Page 261

148 A.2d 261

146 Conn. 129, 70 A.L.R.2d 358

Eugene L. FACEY, Administrator (Estate of John W. Facey) v. Francis J. MERKLE et al.

Supreme Court of Errors of Connecticut.

Jan. 27, 1959.

Snow G. Munford, Hartford, for appellants (defendants).

Joseph P. Kenny, Hartford, for appellee (plaintiff).

Before DALY, C. J., and BALDWIN, KING, MURPHY and MELLITZ, JJ.

KING, Associate Justice.

The defendants' basic assignment of error is that their motion to set aside the verdict for the plaintiff on the ground that it was against the evidence on the issue of liability should have been granted. This claim must be determined on the narrative of evidence. Nicholson Realty, Inc. v. Libby, 144 Conn. 555, 557, 135 A.2d 738; Practice Book § 448. The defendants also assign errors in certain rulings on evidence. These must be determined on the finding. Id. § 405; Maltbie, Conn.App.Proc., §§ 126, 147.

The facts material to the appeal which the evidence warranted the jury in finding will be summarized. The defendant Elsie N. Merkle saw the decedent rolling down the last few steps of a stairway in a rest home operated by her and her husband, the defendant Francis J. Merkle. Death resulted from the fall. The decedent was seventy-nine years old, had been discharged from a hospital after a cataract operation on each eye, had thereafter spent about six weeks in a private convalescent hospital, and had been removed therefrom by the plaintiff, who was his son and conservator, to the defendants' rest home. At the time of the admission of the decedent, he was wearing new glasses and used a cane in walking. He was assigned a room on the second floor opening onto a landing at the top of the stairs and, while arranging for his admission, the plaintiff and his wife called Mrs. Merkle's attention to the danger that the decedent would come out of his room and fall down the stairs. Mrs. Merkle assured them that a gate would have to be installed at the head of the stairs and that the defendants would supervise the decedent, at least most of the time, in going up and down the stairs. The decedent was at times incontinent and on the day of the fall had, while downstairs, soiled his slippers. Mrs. Merkle started to clean them and the decedent went upstairs, in his stocking feet to get his shoes. He put them on and the fall took place.

In describing the occurrence, the complaint alleged that 'the decedent * * * was in the act of leaving his room to descend said stairway, when by reason of the * * * defective condition * * * [of the] staircase * * * [he] was caused to fall down said stairway to the bottom.' These allegations precluded recovery on any theory that the decedent fell at any place other than at or near the top of the staircase. Reciprocal Exchange v. Altherm, Inc., 142 Conn. 545, 552, 115 A.2d 460; Antonofsky v. Goldberg, 144 Conn. 594, 599, 136 A.2d 338. The complaint is far from a model. In specifying alleged defective conditions of the staircase, it did not limit itself to those at the head, and its allegations were mutally inconsistent. As hereinafter pointed out, however, the only evidence was that the plaintiff fell at or near the top of the stairs, and the jury could not legally have considered any claimed defective condition elsewhere. The only specification of a defective condition at or near the top of the staircase was that 'the location of the exit from the decedent's room, being directly adjacent to the top step, did expose a person leaving said room to imminent risk of life or limb.' Since no error was claimed in the charge, it is not printed in the record and is presumed to have been correct. Brower v. Perkins, 135 Conn. 675, 683, 68 A.2d 146; see Maltbie, Conn.App.Proc., § 189, p. 232. We therefore must assume that there was only the one claimed defective condition submitted to the jury. There was evidence that the top of the staircase was defective because of the proximity to it of the doorway of the decedent's room, since (a) the door was hinged on the side away from, instead of the side toward, the staircase, and (b) a part of the doorway slightly overhung the staircase. The decedent was admitted on March 16, 1957, and his fall took place on March 20. He was a business visitor at the defendants' establishment. Hennessey v. Hennessey, 145 Conn. 211, 212, 140 A.2d 473. The measure of duty owed him by the defendants with respect to the condition of the premises was the exercise of reasonable care to have and keep them reasonably safe for the reasonably to be anticipated uses which he would make of them. Lubenow v. Cook, 137 Conn. 611, 614, 79 A.2d 826. The defendants knew of the decedent's general condition, of the cataract operation and of the new glasses. The stairway was not only an area of the premises where he had a right to be but was also an area where Mrs. Merkle knew that he was then likely to be, since he had gone up to his room unattended, in his stocking feet, to get shoes to replace the slippers which she had taken to be cleaned. Knapp v. Connecticut Theatrical Corporation, 122 Conn. 413, 416, 190 A. 291.

It is the defendants' claim that since no one saw the decedent fall, there is no evidence as to where he fell or as to the cause of his fall and that this necessarily required that any verdict in the plaintiff's favor be set aside. At this point it is appropriate to consider a claim of error in a ruling on evidence. Some few days after the fall, the plaintiff's wife visited the decedent in the hospital. He was then unable to speak to any extent, but could move his head. She testified that she asked him whether he fell at the bend in the stairs. This bend began two steps below the upper landing which also was the entrance to his room. Over the defendants' objection and exception, she was allowed to answer that the decedent moved his head from side to side and to indicate the motion with her own head. She then testified that she asked the decedent it he fell at the top of the stairs. Over the defendants' objection and exception, she was allowed to answer that he moved his head up and down and to indicate the motion with her own head. It is the defendants' claim that while our statute (Rev. 1958, § 52-172) ¹ makes admissible statements of the decedent, it does not render admissible monosyllabic responses, whether by speech or sign, to questions propounded by another. The statute is broad enough to include ordinary modes of communication, including a motion of the head. The leading nature of the questions propounded to the decedent, and any consequent uncertainty as to the accuracy of his comprehension of them, affected the weight to be given the testimony. They did not render it incompetent. But cross-examination of the witness, the defendants could bring out these infirmities, such as they were. We cannot say on this record that the court erred in admitting this evidence. See Holcomb v. Holcomb, 28 Conn. 177, 179; Taborsky v. State, 142 Conn. 619, 629, 116 A.2d 433, 49 A.L.R.2d 1238.

The same witness was asked as to the meaning of the head motions of the decedent which she had described and, over objection and exception, was allowed to answer that the decedent, by the shake of the head, indicated 'No,' and by the up and down motion indicated 'Yes.' This evidence, in the sound discretion of the trial court and subject to test by cross-examination, was admissible under the rule as to lay opinion evidence as explained in cases such as Sydleman v....