Marciniak v. Wauregan Mills, Inc.

• Citation: 139 Conn. 264,93 A.2d 135
• Court: Connecticut Supreme Court
• Decision Date: 25 November 1952
• Parties: MARCINIAK v. WAUREGAN MILLS, Inc., et al. Supreme Court of Errors of Connecticut

Page 135

93 A.2d 135

139 Conn. 264

MARCINIAK v. WAUREGAN MILLS, Inc., et al.

Supreme Court of Errors of Connecticut.

Nov. 25, 1952.

James W. Carpenter, Hartford, for appellants.

Allyn L. Brown, Jr., Norwich, with whom were Paul J. Driscoll, Norwich and, on the brief, Charles W. Jewett, Norwich, for appellee.

Before JENNINGS, INGLIS, BALDWIN, O'SULLIVAN, JJ., and ROBERTS, Superior Court Judge.

JENNINGS, Associate Justice.

The plaintiff was injured in an automobile accident and had a verdict of $20,000. The defendants appealed on the ground of a variance between pleadings and proof and from the denial of their motion to set aside the verdict as excessive.

The finding consists almost entirely of rulings on evidence. The complaint alleged that the plaintiff was injured in an automobile accident on February 2, 1950, and that as a result he 'was knocked back against the back of the front seat, dazed, jolted and was severely and permanently injured, receiving a ruptured 4th lumbar intervertebral disc and other serious low back injury, and a severe and permanent injury to his entire nervous system and the muscles of his back and legs.' The complaint went on to allege the plaintiff's pain and suffering, interference with his employment, an operation on November 2, 1950, for the removal of a ruptured and protruded disc in the fourth lumbar interspace, loss of wages and medical and hospital bills. It concluded: '[The plaintiff] will in the future lose a large sum for wages and be required to expend further large sums for medical and doctors bills.'

It appears from the finding that the trial started November 15, 1951. On the first day the plaintiff and his doctor testified without objection to the operation in the fall of 1950 and to a second disc operation in July, 1951. On the following day the plaintiff's wife testified with reference to his continued pain after the first operation. When she was questioned about the second operation she was interrupted by the defendants' objection that the second operation was not mentioned in the complaint. From the colloquy that ensued it appears that on June 18, 1951, the plaintiff's attorney wrote the defendants' attorney that the plaintiff's doctor feared 'it will be necessary to remove a second ruptured disc from his spine, and therefore it will be impossible to consider settlement in December, until the second operation is completed.' It thus appears that the claim of variance is a purely technical one based on the lack of a formal pleading. The letter fairly put the defendants on notice as to the probability of a second operation. The evidence disclosed that the second operation was in part for the removal of another portion of the same intervertebral disc as that which had been partially removed in the first operation. This was the fourth lumber disc, the very one which the complaint alleged had been injured. It should be observed in passing that the claim of variance does not relate to the plaintiff's cause of action but only to the injuries ensuing. The cases cited by the defendants, with one exception, deal with a variance between the cause of action alleged and that proved. Winsor v. Hawkins, 130 Conn. 669, 37 A.2d 222, turned on the questions of waiver and an immaterial variance.

We recently had occasion to examine this question in the case of Varley v. Motyl, 139 Conn. 128, 90 A.2d 869. The issue was not identical but the facts were strangely similar. There was, as in this case, a comparatively slight collision with unexpectedly serious results. The allegation of the complaint in the Varley case was that the accident affected and injured the plaintiff's heart and the question was whether this permitted proof of an aggravation of a pre-existing heart condition. The test was stated to be: Does the allegation give sufficient notice of the type of injury which would be claimed? The question was answered in the affirmative, 139 Conn. at page 135, 90 A.2d at page 872, and controls the case at bar. As was well said by the plaintiff in argument, it is not necessary that a complaint state every remedial medical step taken. We hold that the allegations of the complaint were broad enough to cover damages for the second operation. This disposes of the rulings on evidence set up in the finding, all of which related to this claim. It is not necessary to consider the question of waiver.

In support of their assignment of error that the denial of their motion to set aside the verdict was unjustified, the defendants have filed an appendix, as provided for by Practice Book, § 447. Section 448 describes the method of stating the evidence. ¹ The rules speak for themselves. A preliminary question is whether the appendix, partly in narrative form and partly in question and answer form, is sufficient to enable us to decide the issue.

Prior to the passage of these rules, the customary method of testing the validity of the verdict when it was claimed to be excessive was to print all of the evidence relating to damages in question and answer form. Green v. Brown, 100 Conn. 274, 277, 123 A. 435; Maltbie, Conn.App.Proc., § 115. Indeed, it is possible that appellees would be better protected by this method of presenting this difficult and rather peculiar issue. The use of the narrative form was not entirely excluded. Hickey v. New York, N. H. & H. R. Co., 83 Conn. 713, 714, 78 A. 655; Farrington v. Cheponis, 84 Conn. 1, 4, 78 A. 652; Dick v. Colonial Trust Co., 88 Conn. 93, 98, 89 A. 907; Green v. Brown, supra. It was even commended. Katz v. Cohn, 122 Conn. 338, 339, 189 A. 594; see Berry, 'Appeals from Jury Verdicts,' 15 Conn.B.J. 83, 96-98. In the absence of a rule, it was necessary that such a narrative statement be agreed to by the parties and approved by the court. Maltbie, op.cit.p. 156. Under the new rules the approval of the court is not available because the appeal is out of its hands when the appendix is prepared. Section 448 allows the opposing party, if he disagrees, to print such evidence as he deems necessary to support his claim.

The new rules were not without other precedent. The federal rules furnish a close analogy. Federal Rules of Civil Procedure, Rule 75(c), 28 U.S.C.A.; 3 Moore, Federal Practice, pp. 3402, 3405; 19 Hughes, Federal Practice, § 27289 et seq.; In re Windsor Square Development, Inc., 9 Cir., 91 F.2d 493, 496. The following cases were decided under different statutes and rules but illustrate various aspects of the practice. Statement held sufficient: Trieseler v. Helmbacher, 350 Mo. 807, 809, 168 S.W.2d 1030; Starmer v. Mid-West Chevrolet Corporation, 175 Okl. 160, 162, 51 P.2d 786; Seibold v. City of Muskogee, 155 Okl. 81, 83, 8 P.2d 35; Johnson v. Commonwealth Building & Loan Assn., 182 Ark. 226, 230, 31 S.W.2d 136; Mahmet v. American Radiator Co., Mo.Sup., 294 S.W. 1014. Filing a printed transcript of testimony does not conform to a rule requiring a concise statement of facts: Casey v. East Carolina Ry., 198 N.C. 432, 433, 152 S.E. 38; Dondore v. Rohner, 224 Iowa 1, 3, 275 N.W. 886; Cornell-Andrews Smelting Co. v. Boston & P. R. Corporation, 215 Mass. 381, 387, 102 N.E. 625; see New Haven Water Co. v. Borough of Wallingford, 72 Conn. 293, 301, 44 A. 235.

Examined against this background, the defendants' appendix seems reasonably adequate in form to present the facts relevant to the issue. The combination of narrative and evidence by question and answer is somewhat confusing owing to our long experience in reading evidence. The basic purpose of the new rules is to save time and money for litigants and the court. See Katz v. Cohn, supra. The appendix is adapted to secure the desired result. ² The practice is new and not too familiar to counsel. We deem this sufficient cause to consult the transcript of evidence to ascertain whether the appendix contains the substance of all of the evidence on damages. Practice...