Morgillo v. Evergreen Cemetery Ass'n

• Decision Date: 19 November 1964
• Citation: 205 A.2d 368,152 Conn. 169
• Parties: Louis MORGILLO v. EVERGREEN CEMETERY ASSOCIATION. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 368

205 A.2d 368

152 Conn. 169

Louis MORGILLO v. EVERGREEN CEMETERY ASSOCIATION.

Supreme Court of Errors of Connecticut.

Nov. 19, 1964.

William T. Holleran, New Haven, for appellant (defendant).

Benedict S. Moss, New Haven, with whom were Frederick A. Cohn and, on the brief, Frederick S. Moss, New Haven, for appellee (plaintiff).

Before KING, C. J., and MURPHY, ALCORN, COMPANY and SHANNON, JJ.

MURPHY, Associate Justice.

The defendant has appealed from a judgment rendered on a verdict of $75,000 for the plaintiff for injuries sustained on March 19, 1957, while he was acting as a pallbearer at a funeral in the defendant's cementery. The defendant assigns error in the denial of its motion to set aside the verdict, the finding of claims of proof without evidence, rulings on evidence, and the charge.

A lengthy recitation of the claims of proof by the parties is not essential to our disposition of the appeal. The following abridged summary will be sufficient. In preparation for the burial, the defendant had by its employees dug a grave into which a burial vault had been lowered, constructed a platform of removable planks about the grave and set up a device for lowering the casket into the grave. The platform consisted of one plank, eight feet long, laid crosswise at each end of the grave, on a mound of dirt, and two ten-foot planks laid parallel with and on each side of the grave, bridging the two end planks. Each side plank was twelve inches wide. In addition, on one side of the grave, a plank six inches wide was placed between the grave and the twelve-inch planks. The narrower plank, called a half, extended over the grave opening for the full length of the grave, that is, seven feet three inches. All of the planks were two inches thick. They were covered with artificial grass mats. The half plank had a knot near its center. The plaintiff, a 250-pound man carrying one side of the front end of a 250-pound casket containing a 250-pound body, stepped on the half plank, it gave way under him at the knot, and his right leg went into the grave. He suffered a cervical sprain and strained his lower back. He was hospitalized when his back did not respond to conservative treatment. Subsequently, he underwent an operation to remove a herniated disc, and a spinal fusion was performed. He was incapacitated for some period of time, has been unable to perform the work which he formerly did not has a permanent partial disability.

The plaintiff alleged and principally claimed to have proved that the defendant was negligent in the construction of the platform and in the use of a defective and weak plank which would not support the weight which was imposed on it by the plaintiff. The defendant disputed the claims of negligence and asserted that the plaintiff had not sustained a herniated disc but rather had a degenerated disc which antedated his accident. At most, the defendant conceded that the plaintiff had sustained a muscular strain of the neck and lower back.

The record on appeal in this case is so far from being a model that we feel obliged to direct attention to it. Counsel should make a reasonable attempt to follow the rules so that the trial judge can prepare a finding which will present the issues clearly for our review. The claims of proof by the plaintiff are disjointed, rambling, confusing and repetitious and fail to present the basic issues of liability and damages in an orderly and logical manner. A finding in a jury case serves a limited purpose. It is mere narrative of the facts which are claimed to have been proved and is designed to test the correctness of the charge or the rulings of the court. State v. Whiteside, 148 Conn. 208, 214, 169 A.2d 260. It should not be detailed or voluminous but confined strictly to the facts bearing on the questions raised. Maltbie, Conn.App.Proc. § 143. The plaintiff is not alone chargeable with indifference to or disregard of the rules governing the manner of properly presenting appeals. As will appear later in this opinion, the defendant's presentation falls far short of what should reasonably be expected of competent counsel. The trial court would have been justified in returning both the draft finding and the counterfinding for proper preparation of their contents.

The assignment of error directed to the claims of proof of the plaintiff states that five full paragraphs and portions of two other paragraphs were found without evidence. In order to avoid having these stricken from the finding, and thus having the support for the charge and the rulings on evidence weakened, the plaintiff had to print in his appendix the narractive of the evidence substantiating his claims of proof. Cushing v. Salmon, 148 Conn. 631, 632, 173 A.2d 543. One of the plaintiff's claims was that '[w]hen used, half planks are placed on the outside of the grave opening.' To support this claim, the plaintiff stated in his appendix that the gravedigger, whose father set up the platform, testified that although half planks were sometimes used, they were always placed on the outside of the grave. The transcript reveals that the use of the word 'always' was a distortion of the testimony of the witness. He testified that half planks were not used very often but that when they were used they were 'usually' placed on the outside. It was also claimed by the plaintiff that the gravedigger, at the time the platform was set up, 'knew the half plank was being improperly used because of its rotten appearance and the position in which it was set.' Neither of these claims finds support in the plaintiff's appendix. The gravedigger testified that after the accident he examined the break in the half plank at the knot and 'it was very dark wood, a grayish-brown, as it was rotted a little.' Therefore, paragraphs 102 and 106 of the finding must be deleted. In addition, the final sentence in paragraph 147a of the finding is stricken, since there was no evidence that the plaintiff held a federal civil service position from which future benefits might accrue.

The assignments of error directed to the rulings on evidence are concerned primarily with the exclusion of evidence which the defendant sought to introduce through two longtime employees. The purpose of the examinations was to counter the claim of the plaintiff that the defendant had been negligent in using the half plank, with the knot in it, over the grave opening. Theogene Prunier, a nine-year employee, delivered the planks which were used to the grave site. He was asked whether he had an opinion, based on his experience and observation of the half plank, as to whether that plank was or was not safe to use. The objection to the question should not have been sustained. It was a preliminary question. The plaintiff, in an apparent attempt to overcome his error in objecting to the question, succeeded in...