Johnson v. Healy

• Decision Date: 14 April 1981
• Court: Connecticut Supreme Court
• Parties: Ronald K. JOHNSON v. John J. HEALY.

Page 765

440 A.2d 765

183 Conn. 514

Ronald K. JOHNSON v. John J. HEALY.

Supreme Court of Connecticut.

Argued March 5, 1981.

Decided April 14, 1981.

Neal B. Hanlon, Naugatuck, for appellant-appellee (plaintiff).

George R. Temple, Seymour, with whom, on brief, was Joseph N. Perelmutter, Seymour, for appellee-appellant (defendant).

Before BOGDANSKI, C. J., and PETERS, HEALEY, PARSKEY and ARMENTANO, JJ.

PER CURIAM.

In Johnson v. Healy (I), 176 Conn. 97, 405 A.2d 54 (1978), this court decided that the plaintiff, Ronald K. Johnson, had established a cause of action for innocent misrepresentation against the defendant, John J. Healy. Because of error in the trial court's calculation of the damages resulting from such misrepresentation, we remanded the case for further proceedings limited to the issue of damages. Upon the retrial, the plaintiff was awarded the sum of $2750 in accordance with the standard established in Johnson v. Healy (I), supra, 106, 405 A.2d 54, "the difference in value between the property had it been as represented and the property as it actually was." Both parties have again appealed.

As we recognized in Johnson v. Healy (I), supra, 106, 405 A.2d 54, a standard of damages measured by diminution in value "is notoriously more difficult to apply than to state." When damages are difficult to prove, the proponent is required to prove damages with the precision which the facts permit, but no more. Bead Chain Mfg. Co. v. Saxton Products, Inc., --- Conn. ---, 439 A.2d 314 (42 Conn.L.J., No. 36, pp. 5, 9) (1981); Restatement (Second), Contracts § 366 (Tent.Draft No. 14, 1979). In light of all of the evidence and the pleadings in the whole record, we cannot find clearly erroneous the trial court's factual determination of the damages in this case. Stelco Industries, Inc. v. Cohen, --- Conn. ---, ---, 438 A.2d 759 (42 Conn.L.J., No. 26, pp. 4, 5) (1980); Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222, 435 A.2d 24 (1980).

On the plaintiff's appeal seeking higher damages, we find no merit in the argument that the trier was bound to accept the testimony of the plaintiff's expert witnesses. "The acceptance or rejection of the opinions of expert witnesses is a matter peculiarly within the province of the trier of fact and its determinations will be accorded great deference by this court." F. P. Carabillo Construction Co. v. Covenant Ins. Co., 172 Conn. 564, 566, 375 A.2d 1029 (1977); Morgan v. Hill, 139 Conn. 159, 161, 90 A.2d 641 (1952). The trial court correctly refused to consider as a measure of diminution in value the plaintiff's proffered evidence of repair costs in excess of the purchase price of the property being repaired. Johnson v. Healy (I), supra, 176 Conn. 105-106, 405 A.2d 54; Levesque v. D & M Builders, Inc., 170 Conn. 177, 180-82, 365 A.2d 1216 (1976). The trial court did not abuse its discretion in permitting testimony concerning the plaintiff's continued occupancy of the property, subsequent to the date of the misrepresentation, when the plaintiff's witness had testified that the property would have been unsaleable had the problems associated with it been known to a potential buyer. Questions of relevancy cannot be adjudicated by precise rules of law and must be left to be determined in each case according to reason and judicial experience. Hoadley v. University of Hartford, 176 Conn. 669, 672, 410 A.2d 472 (1979); Doran v. Wolk, 170 Conn. 226, 232, 365 A.2d 1190 (1976). When, as the trial court observed, the fact in question was obvious anyway, admission of the evidence could hardly constitute an abuse of discretion.

On the defendant's appeal, although three issues are listed in the statement of issues,...