Hennessey v. Hennessey

• Decision Date: 03 April 1958
• Citation: 145 Conn. 211,140 A.2d 473
• Parties: Mary J. HENNESSEY v. Wilbur G. HENNESSEY. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 473

140 A.2d 473

145 Conn. 211

Mary J. HENNESSEY v. Wilbur G. HENNESSEY.

Supreme Court of Errors of Connecticut.

April 3, 1958.

David M. Reilly, Jr., New Haven, for appellant (defendant).

James O. Shea, New Haven, for appellee (plaintiff).

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

KING, Associate Justice.

The plaintiff sued for damages sustained in a fall on the floor of the back hall of a house owned by the defendant and occupied as a home by him and a bachelor son whom the plaintiff has since married. The fall occurred at about 11:30 in the evening of August 18, 1955. The plaintiff prevailed, and the defendant has appealed, claiming error in the charge and in the denial of his motion to set aside the verdict as against the evidence.

The court, in accordance with the defendant's claim, charged that the status of the plaintiff was that of a social guest under the rule of cases such as Laube v. Stevenson, 137 Conn. 469, 473, 78 A.2d 693, 25 A.L.R.2d 592, Lubenow v. Cook, 137 Conn. 611, 613, 79 A.2d 826, and Torre v. De Renzo, 143 Conn. 302, 308, 122 A.2d 25. The basic effect of the doctrine of these cases was to confer upon a social guest the status of a licensee or, conversely expressed, to restrict the legal status of an invitee to such of the persons expressly or impliedly invited by the possessor to come upon his premises as are business visitors, that is, as are there for a purpose directly or indirectly connected with business dealings with him, leaving social guests, even though expressly invited, in the category of mere licensees. Laube v. Stevenson, supra; Lubenow v. Cook, supra, 137 Conn. 614, 79 A.2d 828.

But our rule as to the measure of duty owed to a licensee was left unchanged. Laube v. Stevenson, supra, 137 Conn. 474, 78 A.2d 696, and cases cited. Its essential elements were restated in Lubenow v. Cook, supra, 137 Conn. 614, 615, 79 A.2d 828. As applied to the instant case, these essential elements are that (1) the defendant knew of the presence of the plaintiff in his home, ¹ (2) thereafter he failed to exercise reasonable care (a) to refrain from actively subjecting her to danger or (b) to warn her of any dangerous condition--in the portion of his premises to which a license to enter had been extended--which he himself knew of and which he could not reasonably assume that she, as a licensee, knew of or by reasonable use of her faculties would observe; and (3) such failure to exercise reasonable care, in either or both respects, constituted a proximate cause of her fall.

The first assignment of error was that the court should have set the verdict aside as against the evidence on the issue of liability. The jury could have found the first essential element proven, in that the plaintiff was in the area where she fell in response to the defendant's request that she close the outside door to the back hall because, as he said, 'the floor gets very wet when it rains.' The basic claim of the defendant is that there was no evidence from which the jury could reasonably find that the plaintiff had proven the other essential elements of her cause of action.

There was no evidence that the defendant, who was a cripple and could get about his house unaided only with difficulty and on crutches, had actually seen the rain water on the waxed floor, which was the dangerous condition complained of, or that anyone had told him of that condition. The defendant correctly claims that actual knowledge of the precise defect constituting the dangerous condition had to be proven as distinguished from actual knowledge of conditions naturally productive of the dangerous condition and subsequently in fact producing it. Drible v. Village Improvement Co., 123 Conn. 20, 23 192 A. 308. But this does not mean that circumstantial evidence is not available, and cannot be sufficient, to prove the actual notice of the precise defect. Herein lies the fundamental infirmity in the defendant's claims on this appeal. Proof of a fact does not require proof equivalent to a mathematical demonstration. 'In an ordinary civil action, the party upon whom rests the burden of proof [as to a fact or an issue] has sustained [that burden] if the evidence, considered fairly and impartially, induces in the mind of the trier a reasonable belief that it is more probable than otherwise that the fact [or] issue is true.' Darrow v. Fleischner, 117 Conn. 518, 520, 169 A. 197, 198; Esserman v. Madden, 123 Conn. 386, 388, 195 A. 739. Circumstantial evidence involves the offering of evidence of facts from which the trier is asked to infer the existence of, and, so, to find proven, another fact or facts. Such fact or facts may be so found proven if, but only if, the trier finds that the facts from which the trier is asked to draw the inference are proven and that the inference is not only logical and reasonable but strong enough so that it can be found that it is more probable than otherwise that the fact to be inferred is true. Doherty v. Connecticut Co., 133 Conn. 469, 477, 52 A.2d 436; Orico v. Williams, 139 Conn. 714, 717, 97 A.2d 556, and cases cited. In many cases, including this case, circumstantial evidence is the only evidence available to a party to prove a fact material or essential to his cause of action or defense.

The jury could have found that the defendant knew that the outside door leading to the back hall was open; that he knew that the floor in the back hall was waxed; that he knew that this floor became slippery if water got on it; that on the night in question, as he sat in his chair, he heard the rain coming down and, as he testified, 'sure did' hear the wind blowing; and that the plaintiff's fall took place during a hurricane. While the evidence is weak, we cannot say that it was insufficient to warrant a finding that prior to requesting the plaintiff to close the door the defendant knew...