Halpine v. Halpine

• Decision Date: 05 March 1952
• Parties: HALPINE v. HALPINE. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 146

87 A.2d 146

138 Conn. 578

HALPINE v. HALPINE.

Supreme Court of Errors of Connecticut.

March 5, 1952.

Charles A. Watrous, Robert L. Sullivan, New Milford (Macgregor Kilpatrick, New Haven, on the brief), for the appellant, plaintiff.

John E. McNerney and A. R. Moquet, New Haven (Francis J. Moran, New Haven, on the brief), for the appellee, defendant.

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.

JENNINGS, Associate Justice.

This case is concerned with the effect of the defendant's resting her case without offering any evidence.

The plaintiff offered evidence to prove and claimed to have proved the following facts: Plaintiff and defendant are sisters. It was the custom of the plaintiff to visit the defendant about 1 p. m. on Sunday afternoons. On Sunday, October 24, 1948, the defendant expected the plaintiff at the usual time. Her porch had been painted two days before and a broom had been used as a barrier to keep people off the wet paint. On Sunday she removed the broom about 9:30 a. m. It was not raining at that time. Rain started about noon. The defendant knew or should have known that the porch was wet and slippery. The plaintiff arrived a little after one o'clock and slipped and fell on the porch. She was seriously injured. At the close of the plaintiff's evidence, the defendant rested her case without offering evidence and moved for a directed verdict. The motion was denied.

The plaintiff is entitled to have the third paragraph of her draft finding added to the finding. It reads: 'Upon the trial of the case to the Jury, plaintiff produced the defendant as a witness and addressed to her questions relating only to the location, orientation, and painting of the porch, the removal of the broomstick barrier by the defendant herself when she expected the plaintiff to visit her and as to her discovery of the injured plaintiff on the porch. Counsel for the plaintiff did not inquire of the defendant as to the condition of the porch at the time the barrier was removed or at the time of the plaintiff's fall, nor whether it was slippery at either time.'

In this situation the court charged, in effect, that no unfavorable inference should be drawn from the failure of the defendant to produce evidence peculiarly within her knowledge. The plaintiff duly excepted and assigned this instructions as error.

If the plaintiff had not made out a prima facie case the charge would have been correct. Middletown Trust Co. v. Bregman, 118 Conn. 651, 658, 174 A. 67. The charge is tested by the finding. The trial court found that the plaintiff offered evidence to prove and claimed to have proved that the defendant knew or ought to have known of the dangerous condition. This finding indicated that a prima facie case had been made out. It was not attacked. Under these circumstances the parties had to assume and did assume that a prima facie case had been presented. The applicable rule is thus stated in Russo v. Dinerstein, 138 Conn. 220, 226, 83 A.2d 222, 225: 'This controlling rule is: 'It [the rule as to the inference] is not applicable until the plaintiff has first made out a prima facie case. The inference drawn from the failure to testify does not supply the place of evidence of material facts and does not shift the burden of proof so as to relieve the party upon whom it rests of the necessity of establishing a prima facie case, although it may turn the scale when the evidence is closely balanced.' Middletown Trust Co. v. Bregman [supra], 118 Conn. 651, 657, 174 A. 67, 70. Or, to state it affirmatively, when a prima facie case in made out, then there comes into full operation the maxim cited in Cupo v. Royal Ins. Co., 101 Conn. 586, 592, 126 A. 844, that all evidence is to be weighed according to the proof that it was in the power of one side to have produced, and in the power of the other to have contradicted. DeMarey v. Brugas, 103 Conn. 667, 670, 131 A. 392. We recently thus referred to the potential value of the inference when permissible: 'Furthermore, as the finding sufficed to make out a prima facie case in the essential particulars, the failure of the defendant to call [his employee] as a witness served to fortify the plaintiff's case, since he was available and was the one whom the...