Johnson v. Toscano

• Decision Date: 05 November 1957
• Citation: 136 A.2d 341,144 Conn. 582
• Parties: Elsworth JOHNSON v. Joseph A. TOSCANO et al. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 341

136 A.2d 341

144 Conn. 582

Elsworth JOHNSON v. Joseph A. TOSCANO et al.

Supreme Court of Errors of Connecticut.

Nov. 5, 1957.

Bertrand Quinto, Hartford, with whom were A. Arthur Giddon, Hartford, and on the brief, Morton E. Cole, Cyril Cole and Jacob H. Channin, Hartford, for appellant (plaintiff).

Valentine J. Sacco, Hartford, with whom was Jerome I. Walsh, Hartford, for appellees (defendants).

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

The plaintiff had a verdict for $3,000 which he moved to set aside as inadequate. The court denied the motion. He has appealed from the judgment, alleging error in the court's refusal to permit the filing of a substitute complaint, in rulings on the admission of evidence, in the refusal to charge as requested, and in the denial of the motion to set aside the verdict.

The defendants admitted liability and the case was tried upon the issue of damages. The plaintiff offered evidence from which he claimed to have proved the following: In the nighttime of December 4, 1946, he was standing near his automobile, which was parked on Porter Street in Manchester. An automobile owned by the defendants, Joseph A. and Emma Toscano, while being driven by Joseph, ran into the plaintiff and his car. The plaintiff tried to avoid being injured by jumping upon the fender and hood of his car, but he was struck in the leg and fell to the ground. He immediately felt a sharp pain in his lower back and right groin. He sustained contusions to his right leg, a lumbosacral sprain and a traumatic hernia. He did not consult a doctor until approximately a week after the accident. While under the care of this physician, Dr. G. R. Miller, Dr. D. M. Caldwell performed surgery on a right inguinal hernia. The plaintiff received a permanent injury to his lower back. He was employed as a grinder at Pratt and Whitney Aircraft, and he was incapacitated for work thirteen and one-half weeks. When he returned to work he had, and still has, difficulty and needs help to do his job. He has been giving himself treatment at home, but the pain and discomfort in his back continue. He is physically unable to engage in sports as he did before the accident. In April, 1955, Dr. S. J. Silbermann, a neurosurgeon, examined the plaintiff at the request of the latter's counsel. Pursuant to an order of court, the plaintiff was examined in behalf of the defendants on April 15, 1955, by Dr. W. B. Scoville, a neurosurgeon.

The defendants offered no evidence but claimed the following facts from the evidence produced by the plaintiff. The plaintiff was uncertain whether any injury was caused him by an actual touching by the defendants' car. He remained at the scene of the accident for half an hour and did not call a doctor to treat his injuries. The next day he went to work and continued at work each working day thereafter until December 12, when he consulted Dr. Miller. The doctor saw the plaintiff on December 12, 14, 20, 27, and 30, 1946, and on January 6, 7, 9, and 18 and March 27, 1947. He noticed a hernia in the plaintiff's right groin on December 20. In January he referred the plaintiff to Dr. Caldwell, a surgeon, who reduced the hernia by operative procedure on January 22 and discharged the plaintiff as cured on February 14, 1947. Dr. Miller also diagnosed a moderately severe lumbosacral back strain. The plaintiff's back was strapped for a short period of time, but a brace was not required. Dr. Miller told the plaintiff on his final visit on March 27, 1947, that if symptoms persisted he was to return for turther treatment. He did not return. When he went back to work in March, he had removed the strapping on his back and has worn none since. He made no complaint of any injuries at the scene of the accident. His absence from work for thirteen and one-half weeks was due primarily to the hernia and his convalescence from the operation. From March 27, 1947, until April 20, 1955, the plaintiff did not seek any medical advice or treatment for any back injury. He worked steadily, and his earnings increased each year with the exception of a period when work time was reduced by his employer. The records of medical examinations of the plaintiff at his place of employment on March 24, 1947, October 21, 1949, January 13, 1950, April 22, 1952, and October 26, 1954, contain notations indicating that he made no complaints about his back. In 1953 he purchased a twenty-eight-foot cabin cruiser which he maintains and operates.

At a pretrial hearing on December 3, 1953, the plaintiff failed to offer any amendment to the complaint alleging injuries in addition to those stated in the original complaint. On April 20, 1955, when the case was on the assignment list for trial, counsel for the plaintiff sent him to Dr. Silbermann for the sole purpose of qualifying the doctor to testify as an expert medical witness for the plaintiff at the trial. Dr. Silbermann did not examine the x-rays, hospital records or medical reports pertaining to the plaintiff's injuries or his operation, nor did he consult with Dr. Miller or Dr. Caldwell, who had treated the plaintiff in 1946 and 1947. On October 10, 1955, the plaintiff filed a motion for permission to file a substitute complaint amending the original complaint by alleging additional back injuries and increasing the ad damnum from $12,000 to $35,000. The court denied the motion on October 14, 1955. The plaintiff renewed his motion at the trial, which began on February 23, 1956, and it was denied again.

We shall first consider the errors assigned in the denials of the plaintiff's motions for permission to file a substitute complaint. The plaintiff made no attempt to amend his pleadings prior to the pretrial hearing on December 3, 1953, nor did he thereafter until October 10, 1955. The substitute complaint then offered was apparently inspired by the report of the physical examination made by Dr. Silbermann on April 20, 1955, in preparation for his testimony as an expert witness in the pending trial. Our courts have pursued a liberal policy in allowing amendments. General Statutes, § 7852; Practice Book, § 92; Stanley v. M. H. Rhodes, Inc., 140 Conn. 689, 692, 103 A.2d 143. The statute and the rule call for the exercise of the court's discretion, and the refusal to allow an amendment must rest upon some sound reason. The present action was begun by process returnable to the court in September, 1947. The pleadings were closed on October 10 of that year. A pretrial hearing was held on December 3, 1953, pursuant to § 144 of the Practice Book. This section as it then read is set forth in full in the footnote. ¹ See Stanley v. City of Hartford, 140 Conn. 643, 645, 103 A.2d 147. The delay in reaching this stage of the proceedings cannot be attributed entirely to congestion in the court docket. The court could fairly assign a substantial portion of it to the failure of the plaintiff's counsel, upon whom the primary obligation to press for a disposition of his client's claim rested, to expedite the proceedings. Nevertheless, no amendment to the pleadings was offered or suggested at the pretrial hearing, when, under the spirit of the rule, counsel should be prepared to state in good faith that his case is in all respects ready for immediate trial. Any amendment of the pleadings, if needed or desired, should be suggested. If a motion is not formally made at the pretrial hearing, permission to amend should be sought promptly in accordance with proper procedure and, if the permission is granted, the amendment itself should thereafter be filed punctually. Practice Book, § 92; Motiejaitisv Johnson, 117 Conn. 631, 638, 169 A. 606. The preparation for pretrial should include an up-to-date medical appraisal of the plaintiff's injuries and the extent of his recovery. Stanley v. City of Hartford, supra, 140 Conn. at page 648, 103 A.2d at page 149. It was, however, not until April 20, 1955, more than a year later, that the plaintiff was sent by his counsel to Dr. Silbermann, not for treatment, but to prepare Dr. Silbermann to testify as an expert at the pending trial. Thereafter, the plaintiff delayed any effort to amend his complaint for a further period of six months. By the time permission to amend was sought and the proposed substitute complaint was filed, eight years had elapsed since the case was returned to court. The court had reasonable cause under all the circumstances to question the good faith of the plaintiff in making his motion to file a substitute complaint, and sound reason to deny it in order to prevent any further delay. Rusch v. Cox, 130 Conn. 26, 32, 31 A.2d 457. The subsequent denial of the motion at the time of the trial was a fortiori proper.

We shall next consider errors assigned in rulings on evidence. The plaintiff claimed at the trial that as a result of the accident he suffered from a traumatic arthritis in his right lumbosacral joint. Dr. Silbermann, the plaintiff's medical expert, testified on the basis of his examination on April 20, 1955, that an old pathological process was going on in this joint. He was asked on direct examination what that process was. The defendants objected and the court excused the jury. In the jury's absence, the witness testified that the process was a traumatic reproduced arthritis. The defendants objected further, and the court ruled that the testimony was not admissible. The ruling was correct. The complaint returned to court in September, 1947, contained no allegation which put the defendants upon sufficient notice that the plaintiff would claim such an injury. Varley v. Motyl, 139 Conn. 128, 134, 90 A.2d 869. The defendants were not at fault. A timely motion for a more specific statement would not have disclosed the claim, nor would it have been disclosed by any such motion made at any time between September, 1947, and April 20, 1955, when Dr. Silbermann made his examination, because the plaintiff...