Jancura v. Szwed

• Decision Date: 05 December 1978
• Citation: 407 A.2d 961,176 Conn. 285
• Parties: Edward JANCURA II et al. v. Stanley A. SZWED, Jr., et al.
• Court: Connecticut Supreme Court

Page 961

407 A.2d 961

176 Conn. 285

Edward JANCURA II et al. v. Stanley A. SZWED, Jr., et al.

Supreme Court of Connecticut.

Argued Oct. 11, 1978.

Decided Dec. 5, 1978.

Snow Gene Munford, Hartford, for appellant-appellee (named defendant).

Edward Jancura II, pro se, the appellee-appellant (named plaintiff).

Before COTTER, C. J., and BOGDANSKI, LONGO, SPEZIALE and PETERS, JJ.

BOGDANSKI, Associate Justice.

The plaintiffs, Theresa Jancura and Edward Jancura II, brought an action in two counts, respectively, to recover damages for personal injuries allegedly caused by the negligence of the defendant Stanley A. Szwed, Jr., in the operation of a motor vehicle owned by the defendant Stanley A. Szwed, Sr. In their complaint the plaintiffs alleged that Stanley, Jr., the operator of the motor vehicle, was the agent of the defendant Stanley, Sr., acting within the scope of his employment or authority, and that said motor vehicle was being operated as a family car with general authority of the owner. The jury returned a verdict in favor of the plaintiffs against the operator Stanley, Jr., but found in favor of the defendant owner of the vehicle, Stanley, Sr., against both plaintiffs. From the judgment rendered on the verdict, the defendant Stanley, Jr., and the plaintiff Edward Jancura have both appealed. The plaintiff Theresa Jancura did not appeal.

The plaintiff, in this appeal, claims error in the court's charge and in certain rulings on evidence, while the defendant, in his appeal, assigns error in the denial of his motion to set aside the verdict, in the court's failure to charge as requested, in rulings on evidence, and in the failure of the court to declare a mistrial. Because our decision on the claims of error directed at the charge will be dispositive of both appeals, we need not address the other claims of error assigned by the parties.

The preliminary statements of fact contained in the briefs of the parties pursuant to §§ 631A and 632A ¹ of the 1963 Practice Book, as amended, reveal the following: On September 27, 1970, at or about 1:30 p. m., the plaintiff Edward Jancura was operating his motor vehicle in a southerly direction on route I-91 between Springfield and Hartford. It was raining at the time and the traffic was heavy as the plaintiff's vehicle approached the Windsor area. At the same time, the defendant Stanley Szwed, Jr., was also driving his motor vehicle on I-91 in a southerly direction in the same general area. Upon ascending a rise in the highway, the plaintiff observed that traffic was backed up on the other side. He therefore slowed his vehicle and brought it to a stop. Sometime thereafter, his vehicle was struck in the rear by the defendant's vehicle, as a result of which the plaintiff claimed to have suffered various injuries.

At the close of the evidence, the defendant requested the court to charge the jury as follows: "Although you may find that the plaintiff, Edward Jancura, was injured by the negligence of the defendants, the plaintiff, Edward Jancura, is obliged by law to use reasonable care to minimize his damages and to promote a recovery. The test to be applied is his good faith and reasonable conduct; that is, he should have done what under the circumstances a person of reasonable prudence would have done." The defendant also submitted other more detailed requests in elaboration of that issue. The court did not adopt any of those requests and failed to give any charge on the subject of a plaintiff's duty to minimize damages. The defendant contends that the court's failure to charge on that issue constituted reversible error.

In response, the plaintiff asserts that the defendant failed to comply with the provisions of § 631A(c) of the 1963 Practice Book which require a party who makes assertions of fact in his argument to make appropriate references to the statement of facts or the page or pages of the record or transcript where such facts are found; that because the defendant failed to make such references in his argument, this court is precluded from considering the merits of the defendant's claim. We do not agree.

While the defendant did not refer to the appropriate pages of the record or transcript in his argument, as required by § 631A(c), he did make the necessary references in his preliminary statement of facts. In that preliminary statement the defendant set forth in considerable detail the underlying facts in support of his request to charge with appropriate references to the transcript or record.

Although those references were not in strict compliance with § 631A(c) and did require this court to search other sections of the brief, they do, nonetheless, provide the necessary factual basis for a proper review of the defendant's claim that the court erred in refusing to charge on the subject of mitigation of damages.

It has long been a " 'rule of general application that one who has been injured by the negligence of another must use reasonable care to promote recovery and prevent any aggravation or increase of the injuries.' " Sette v. Dakis, 133 Conn. 55, 60, 48 A.2d 271, 273. When there are facts in evidence which indicate that a plaintiff may have failed to promote his recovery and do what a reasonably prudent person would be expected to do under the same circumstances, the court, when requested to do so, is obliged to charge on the duty to mitigate damages.

In the present case, there was evidence that a number...