Farrington v. Cheponis & Panarausky

• Decision Date: 06 January 1911
• Citation: 78 A. 652,84 Conn. 1
• Court: Connecticut Supreme Court
• Parties: FARRINGTON v. CHEPONIS & PANARAUSKY.

78 A. 652

84 Conn. 1

FARRINGTON

v. CHEPONIS & PANARAUSKY.

Supreme Court of Errors of Connecticut.

Jan. 6, 1911.

Appeal from District Court of Waterbury; Frederick M. Peasley, Judge.

Action by William Farrington against Chepouis & Panarausky. A verdict was directed for defendants, and plaintiff appeals. Reversed.

The plaintiff claimed to have received personal injuries, while coasting in the highway, by reason of the negligence of the defendants' servant, acting in the discharge of his duties in driving the defendants' horse attached to a wagon in such manner as to cause a collision.

John H. Cassidy, for appellant.

Charles G. Root, for appellees.

PRENTICE, J. The court having directed a verdict for the defendants, the plaintiff desired to appeal to this court for a review of the propriety of that action, as also of the action of the trial judge in respect to three other matters, to wit: (1) His ruling that he was not disqualified; (2) his rulings excluding testimony offered on behalf of the plaintiff; and (3) his ruling that he was without the power to exercise his discretion to receive from plaintiff's counsel, after the arguments had proceeded for about 20 minutes, requests to charge the jury. The proceedings which have been resorted to to secure this review are singularly involved and complicated, and indicate a mistaken notion on the part of counsel, and possibly of the court also, as to the course to be pursued under such conditions, and as to the relation to each other of the various statutory provisions regulating appeal procedure. For this reason, and that the bar may not remain in doubt as to the proper action to be taken under certain conditions, we are prompted to give a fuller consideration to certain phases of the proceedings here taken than would ordinarily be necessary.

For the presentation of the questions involved in the several rulings enumerated above, a finding detailing the action of the court was necessary. Summa v. Dereskiawicz, 82 Conn. 548, 549, 74 Atl. 906; Dennison v. Waterville Cutlery Co., 80 Conn. 596, 598, 69 Atl. 1022. For the purposes of the appeal as related to the direction of a verdict, nothing further was necessary than a certification of all the evidence and rulings as provided in section 805 of the General Statutes, or a finding which by reference to an annexed exhibit, stated such evidence and rulings. Ordinarily no finding which it is competent for a trial judge to make in a jury cause would present for our intelligent examination the question which we are called upon to make in such cases, which is whether or not reasonable men, informed as to the law governing the facts in issue, could come to a conclusion other than that embodied in the verdict directed. Powers v. Connecticut Co., 82 Conn. 665, 670, 74 Atl. 931, 26 L. R. A. (N. S.) 405; Fay v. Hartford & Springfield Street Ry. Co., 81 Conn. 578, 579, 71 Atl. 734. In a case where the trial has been to a jury, the presiding judge cannot, as to disputed matters, make a finding of what has been proven, as in a court case. He can only find what the parties have offered evidence to prove, and claimed to have proved. Such is the form of findings in jury cases. Practice Book (1908), p. 272. For obvious reasons such a finding will ordinarily be wholly inadequate for this court's guidance in the determination of the issue before it where the question is as to the propriety of a direction of a verdict. In occasional cases a situation may be presented where a summary of the evidence would suffice. Sometimes, perhaps, it would be feasible to summarize that relating to portions of the case, and certify to us that bearing upon the remaining matters. In recognition of this fact we said in Powers v. Connecticut Co., 82 Conn. 665, 670, 74 Atl. 931, 26 L. R. A. (N. S.) 405, that such a summary might, if the parties preferred that course, be sent to this court in lieu of the extended transcript. It is apparent that those cases will be exceptional in which a summary of the whole evidence will suffice, and that they will be confined to those in which the evidence is neither conflicting nor doubtful in its purport. It is also obvious that such a method, whether involving the whole evidence or portions of it, may not properly be resorted to by the court without the consent of the parties, as was indicated in the opinion last cited. They are each entitled to the benefit of our examination of the testimony as presented. It is competent for them, however, to consent to the briefer alternative method, if satisfied, as they might be in a given case, that their interests would thereby be protected. In such case the proper procedure is for counsel to present to the judge an agreed summary, with a request to incorporate the same in his finding. If approved by him, he may so incorporate it. Otherwise the ordinary course must be pursued, and the entire evidence and rulings reported to this court. In this way complications and all necessity for corrections of the finding will be avoided.

In the present case the plaintiff gave his notice of appeal, and presented his request for a finding and draft of proposed finding. This draft-finding properly embodied statements setting out the several rulings complained of. It also contained a statement at length of the facts which the plaintiff had offered evidence to prove and claimed to have proved. This, in view of the nature of the evidence, was mistakenly included, since the evidence was such that no summary of it could fairly present the situation before the court for our intelligent review. If counsel, in including this recital, were actuated by the notion that it was a necessary or proper incident to a report of the evidence...