Lavieri v. Ulysses

• Decision Date: 05 April 1962
• Citation: 180 A.2d 632,149 Conn. 396
• Court: Connecticut Supreme Court
• Parties: , 98 A.L.R.2d 1096 Prosper F. LAVIERI v. George ULYSSES et al. Charles H. CONNELL v. Steven FEDUS et al. J. Eric CHADWICK et al. v. Steven F. FEDUS et al. Supreme Court of Errors of Connecticut

Page 632

180 A.2d 632

149 Conn. 396, 98 A.L.R.2d 1096

Prosper F. LAVIERI v. George ULYSSES et al.

Charles H. CONNELL v. Steven FEDUS et al.

J. Eric CHADWICK et al. v. Steven F. FEDUS et al.

Supreme Court of Errors of Connecticut.

April 5, 1962.

William R. Davis, Hartford, for the appellant-appellee (plaintiff in the first case) and the appellee (plaintiff in the second case); with him, in the first case, were Carmine Lavieri, Winsted, and, on the brief, Leon RisCassi, Hartford; with him, on the brief in the second case, were Leon RisCassi, Hartford and Edward S. Downes, Jr., Cheshire.

Charles G. Albom, New Haven, with whom was Bernard Greenberg, New Haven, for the appellees-appellants (defendants Fedus in the first case) and the appellants (defendants in the second and third cases).

Joseph P. Kenny, Hartford, with whom was Thomas F. Wall, Torrington, for the appellees (plaintiffs in the third case).

Before BALDWIN, C. J., and KING, MURPHY, SHEA and ALCORN, JJ.

KING, Associate Justice.

At about 11 o'clock in the evening of October 11, 1956, Prosper F. Lavieri, the plaintiff in the first case, and Florence M. Bonuomo, a plaintiff in the third case, were passengers in a Studebaker sedan which was owned by Charles H. Connell, the plaintiff in the second case, and was being operated by J. Eric Chadwick, the other plaintiff in the third case, in a northerly direction on route 85 in Salem. A car which was owned by Harry A. Bolson and was being operated by him in a southerly direction on that highway went over to its left side of the road and crashed into the Connell car. There was no serious dispute that Bolson's improper operation of his car was the cause of the collision and that the plaintiffs were free from fault. They brought actions for damages under § 2172d of the 1955 Cumulative Supplement (as amended, General Statutes § 30-102), ¹ popularly known as the Dram Shop Act, against the defendants Steven F. and Alice L. Fedus as the owners and operators of Chestnut Lodge, a restaurant in Colchester. The plaintiff in the first case also named as defendants George Ulysses and the Hub Restaurant, Inc., doing business as the Shamrock Cafe, a restaurant in Hartford. Bolson was not made a party defendant.

The three separate actions were (1) by the plaintiff Lavieri; (2), for property damage only, by the plaintiff Connell, who was not an occupant of his car at the time of the accident; and (3) by the plaintiffs Chadwick and Bonuomo. All were tried together. In each, a verdict was rendered against the defendants Fedus, who have appealed. In the first case, the jury found the issues for the defendants Ulysses and Hub Restaurant, Inc., and from the judgment on the verdict in their favor no appeal was taken. In that case, the plaintiff, Lavieri, appealed from the judgment setting aside the verdict of $30,000 because of his failure to file a remittitur of $5000, and the defendants Fedus, hereinafter called the defendants, took a cross appeal. They also appealed from the judgments in favor of the plaintiffs in the second and third cases. To some extent, all the appeals were consolidated, although a separate record was printed in the first case. Verdicts in the actions were rendered on March 16, 1960. The Dram Shop Act had been changed, effective July 1, 1959, by the insertion of the phrase 'up to the amount of twenty-five thousand dollars' after the provision for the recovery of 'just damages.' Public Acts 1959, No. 631. The defendants persuaded the court to hold, in the first case, that this change was retroactively applicable to the action, although it was brought in 1956, and that the change limited Lavieri's permissible recovery to $25,000. On this ground, alone, the court rendered judgment setting aside the verdict unless a remittitur of $5000 was filed.

Basically, the 1955 Dram Shop Act authorized the recovery, by a party injured in person or property by reason of the intoxication of a second party, of just damages from a third party who sold the second party alcoholic liquor while he was intoxicated; and proof that the sale was a proximate cause of the intoxication which caused the injury was not necessary. Pierce v. Albanese, 144 Conn. 241, 250, 129 A.2d 606, appeal dismissed, 355 U.S. 15, 78 S.Ct. 36, 2 L.Ed.2d 21. At the outset, it should be noted that we are not concerned with any question of the power of the legislature, under the constitution, to make the 1959 change in the statute retroactive. Our question is whether the change is to be given a retroactive application even though the 1959 legislation contains no language expressive of any such intention. It is a rule of construction that legislation is not to be applied retroactively unless the legislature clearly expresses such an intent. Michaud v. Fitzryk, 148 Conn. 447, 448, 171 A.2d 397; E. M. Loew's Enterprises, Inc. v. International Alliance, 127 Conn. 415, 418, 17 A.2d 525, 527; Massa v. Nastri, 125 Conn. 144, 146, 3 A.2d 839, 120 A.L.R. 939; Skinner v. Watson, 35 Conn. 124, 126. The rule is not applied, however, to legislation which is general in its terms and affects only matters of procedure. Such legislation is presumed to have been intended to be applicable to all actions, whether pending or not, in the absence of any expressed intention to the contrary. E. M. Loew's Enterprises, Inc. v. International Alliance, supra; Neilson v. Perkins, 86 Conn. 425, 428, 85 A. 686.

We have said that the Dram Shop Act, although in a sense penal, is primarily remedial in nature. Pierce v. Albanese, supra, 144 Conn., 249, 251, 129 A.2d 606. This does not mean, however, that it is primarily procedural. 'It may be questionable whether the * * * [exception to the general rule of construction] applies to all statutory changes which affect only remedies. The basis of the presumed intention that statutes affecting substantive rights shall not apply to pending actions is no doubt the injustice of changing the grounds upon which an action may be maintained after it has been brought. * * * 'The word 'remedy' itself conceals at times an ambiguity, since changes of the form are often closely bound up with changes of the substance. * * * In the end, it is in considerations of good sense and justice that the solution must be found." E. M. Loew's Enterprises, Inc. v. International Alliance, supra. 'Our search for the legislative intent may not, then, in all instances stop with the determination that a statute concerns procedure alone.' Demarest v. Zoning Commission, 134 Conn. 572, 575, 59 A.2d 293, 294. Here the 1959 act, in a sense, affects the remedy, because it curtails the amount of recovery previously permitted. But the Dram Shop Act, prior to the 1959 change, gave a plaintiff a substantive right to recover 'just damages.' The 1959 act, by limiting the amount of the damages recoverable to $25,000, went far beyond any mere question of procedure. It sharply curtailed a substantive right. Legislation which limits or increases statutory liability has generally been held to be substantive in nature. Herrick v. Sayler, 245 F.2d 171, 174 (7th Cir.); Field v. Witt Tire Co., 200 F.2d 74, 77 (2d Cir.); Flores v. Jack Spot Inn, Inc., 17 Ill.App.2d 1, 7, 149 N.E.2d 498; Lichter v. Scher, 11 Ill.App.2d 441, 450 138 N.E.2d 66. The 1959 act was clearly substantive in nature, and it contained nothing indicative of an intent that it should apply to pending actions.

This conclusion is reinforced, if any reinforcement is necessary, by General Statutes § 1-1, which provides, in part, that '[t]he passage or repeal of an act shall not affect any action then pending.' This statute has been held to be 'merely declaratory of * * * [the usual] rule of construction.' Neilson v. Perkins, 86 Conn. 425, 427, 85 A. 686, 687; E. M. Loew's Enterprises, Inc. v. International Alliance, supra, 127 Conn. 420, 17 A.2d 525. The defendants seem to claim that § 1-1 is inapplicable because the 1959 act was 'amendatory' in nature. It may well be that it was amendatory in nature. Simborski v. Wheeler, 121 Conn. 195, 200, 183 A. 688. But whether it was amendatory or not is immaterial, since its enactment constituted the 'passage * * * of an act' within the express provisions of § 1-1. The change limiting recovery to $25,000 did not affect the first case, and the trial court was therefore in error in ordering the remittitur of $5000.

The claims in the defendants' cross appeal in the first case may be divided into two main groups. One group consists of claims of error affecting the issue of liability, claims which are also made in the defendants' appeals in the second and third cases. The other group consists of claims of error connected with the issue of the amount of damages awarded Lavieri. For convenience, we first consider such of the claims affecting the issue of liability as the defendants have raised in their brief. Maltbie, Conn.App.Proc. § 167, p. 208; Bridgeport Hydraulic Co. v. Stratford, 139 Conn. 388, 390, 94 A.2d 1. These include claims of error in two rulings on evidence.

The plaintiff Lavieri called as a witness Dr. Abraham Stolman, a toxicologist. He testified concerning tests he had made of Bolson's blood and urine, tests the results of which were indicative of intoxication. Dr. Stolman was then examined by counsel for the plaintiffs Bonuomo and Chadwick and was asked whether it was not true that a person (bartender) who daily sees persons consuming alcoholic liquor is better able to judge the state of sobriety or intoxication of a consumer than is a person who does not have such contacts. A previous question along the same line had been objected to and voluntarily reframed by counsel, no ruling on the objection being made. The witness had answered in the affirmative before the replacement of the question. Although in a jury case it is the safer practice for the court to strike out such an answer, to make it clear to the jury that they must not consider it, we cannot find...