E. M. Loew's Enterprises, Inc. v. Surabian

Decision Date07 July 1959
Citation153 A.2d 463,146 Conn. 608
CourtConnecticut Supreme Court
PartiesE. M. LOEW'S ENTERPRISES, INC. v. Roxie SURABIAN. Supreme Court of Errors of Connecticut

Francis P. Pallotti, Hartford, with whom was Harry Cooper, Hartford, for appellant (defendant).

David M. Shea, Hartford, with whom, on the brief, were John M. Bailey and Alfred F. Wechsler, Hartford, for appellee (plaintiff).

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

MURPHY, Associate Justice.

The present defendant brought suit against the plaintiff to recover for injuries which she allegedly sustained in a fall in the plaintiff's theater in Hartford. Service was made upon the secretary of state as agent for the plaintiff, a foreign corporation. The copy of the writ and complaint and a separate letter from the office of the secretary of state were received at the plaintiff's Boston headquarters. The writ and complaint and a covering letter were mailed by the plaintiff to an adjustment bureau in Hartford which represented the plaintiff's insurance carrier. These papers were not received at the bureau and were not sent back to the plaintiff. The action was returnable on the first Tuesday of August, 1953. The defendant was represented by an attorney since deceased. He obtained a statutory three months' continuance on October 2, 1953, and on January 29, 1954, had a default entered for failure of the plaintiff to appear. Surabian v. E. M. Loew's Enterprises, Inc., Superior Court, Hartford County, No. 96292. Though the attorney had negotiated with the adjustment bureau on possible settlement of the claim prior to starting suit, he gave no notice of the continuance or the default to it or to the plaintiff. He died in May, 1955, and two months later present counsel filed his appearance. He claimed a hearing in damages, after which the court rendered judgment for $5000 on January 11, 1956. The first notice the plaintiff had of the judgment was a letter dated September 20, 1956, from the defendant's attorney, requesting payment.

The plaintiff thereafter brought the present action for a new trial under what is now Rev.1958, § 52-270, which provides for new trials for certain reasons, including 'want * * * of a reasonable opportunity to appear and defend, when a just defense in whole or part existed.' The allegations of the complaint indicate that this is the ground upon which the plaintiff relies. From the evidence presented, the trial court concluded that the plaintiff has apparently a good defense to the defendant's cause of action and that an apparent failure of justice was occasioned by the default judgment. It also found that the miscarriage of the letter which contained the copy of the writ and complaint and which was mailed by the plaintiff to the adjustment bureau was not caused by the negligence of the plaintiff an that it was entitled to a new trial.

A petition for a new trial is addressed to the discretion of the trial court and will never be granted except upon substantial grounds. As the discretion which the court is called upon to exercise is not an absolute but a legal one, we will upon appeal set aside its action when it appears that there was a misconception on its part as to the limits of its power, that there was error in the proceedings preliminary to the exercise of its discretion, or that there was a clear abuse in its exercise of its discretion. Wood v. Holah, 80 Conn. 314, 315, 68 A. 323. While a new trial is not to be granted readily, nor without strong reasons, it may and ought to be granted where there appears cause for which the court, acting reasonably, would feel bound in duty to grant it. McCulloch v. Pittsburgh Plate Glass Co., 107 Conn. 164, 167, 140 A. 114.

The principal claim of the defendant is that the court has abused its discretion in two respects: (1) in finding that the complaint was mailed by the plaintiff to the adjustment bureau and (2) in concluding that the plaintiff was deprived of a reasonable opportunity to defend because the letter containing the process...

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    • Connecticut Supreme Court
    • January 17, 1995
    ... ... 371, 593 A.2d 498 (1991) ]; A.M. Larson Co. v. Lawlor Ins. Agency, Inc., 153 Conn. 618, 622, 220 A.2d 32 [1966]. The determinative question is ... Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 251, 618 A.2d 506 (1992); Olean v ... 1, 11, 291 A.2d 240 (1971); E.M. Loew's Enterprises, Inc. v. Surabian, 146 Conn. 608, 612, 153 A.2d 463 (1959) ... Walton v. New Hartford, 223 ... ...
  • Eden F., In re
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  • State v. Johnson
    • United States
    • Connecticut Supreme Court
    • September 28, 1982
    ...225, 84 A. 928 (1912). "[T]he ultimate issue is whether the court could reasonably conclude as it did. E. M. Loew's Enterprises, Inc. v. Surabian, 146 Conn. 608, 612, 153 A.2d 463 [1959]." State v. Bitting, supra, 11, 291 A.2d The defendant testified that he coerced his accomplices into com......
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