Nowak v. Nowak

• Decision Date: 09 May 1978
• Parties: Anita M. NOWAK v. Kurt D. NOWAK et al.
• Court: Connecticut Supreme Court

Page 716

394 A.2d 716

175 Conn. 112

Anita M. NOWAK v. Kurt D. NOWAK et al.

Supreme Court of Connecticut.

Argued Nov. 3, 1977.

Decided May 9, 1978.

Joel J. Rottner, Hartford, with whom, on the brief, were Joseph F. Skelley, Jr., and Edward S. Ludorf, Hartford, for appellant (defendant Salvatore Monarca, Jr.).

Paul B. Groobert, Manchester, for appellee (plaintiff).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and SPEZIALE, JJ.

SPEZIALE, Associate Justice.

The defendant Salvatore Monarca, Jr., has appealed from a judgment rendered on a jury verdict finding him liable to the plaintiff, Anita Nowak, hereinafter Anita.

While a passenger in an automobile operated by her son, Kurt, Anita sustained injuries when the Nowak vehicle and an automobile operated by Monarca collided at an intersection. In her complaint she alleged that the collision, and her resultant injuries, were caused by the negligence of Kurt and Monarca. ¹ The Monarca answer included a special defense alleging that at the time the collision occurred Anita was instructing Kurt in the use and operation of the car, that Kurt was negligent in the manner described in Anita's complaint, that according to General Statutes § 14-214 ² Anita was responsible for the operation of the vehicle while Kurt was driving, and that, therefore, Kurt's negligence was Imputed to her as the person responsible for and in control of the vehicle, thereby barring her recovery ³ against the defendant Monarca. ⁴ Anita demurred to the special defense, arguing, inter alia, that neither the General Statutes (§ 14-36, ⁵ § 14-214) nor the common law requires that the negligence of the operator be imputed to the owner-occupant-instructor. The demurrer was sustained by the court (Rubinow, J.) in a thorough and well-reasoned memorandum of decision. Monarca then moved for permission to file a new special defense. The motion was granted and a defense was filed, alleging that any damages suffered by Anita were the proximate result of her own negligence. This was the basic posture of the case which ultimately went to trial and resulted in a plaintiff's verdict. Although the complaint and answer were amended several more times before trial, the defendant made no attempt to reintroduce the defense of imputed negligence.

The defendant's sole claim on appeal is that it was error for the court to sustain the plaintiff's demurrer to his special defense. Before we reach this claim, however, we first respond to the plaintiff's assertion that the defendant, by electing to file the new special defense of contributory negligence, waived his right to appeal the ruling sustaining the demurrer to the original special defense of imputed negligence.

I

A demurrer is a means of challenging the legal sufficiency of a pleading. The ground for the demurrer may be that the facts, as pleaded, do not constitute a legally recognizable claim for relief, or the demurrer may be intended to reach procedural defects in the pleading such as misjoinder of actions or nonjoinder of parties. Practice Book § 106; ⁶ see 1 Stephenson, Conn.Civ.Proc. § 117; James, Civil Procedure § 4.1. A demurrer may be filed by either party: a defendant can demurrer to the complaint; a plaintiff can demur to a special defense or counterclaim.

At common law, a ruling on a demurrer was equivalent to a final judgment; there was no opportunity to amend or to plead over. 1 Stephenson, supra, § 119(a); James, supra. Thus, a party was forced to elect between filing a demurrer or answering and defending on the merits. Today, however, a party whose demurrer is overruled has a right to plead over. General Statutes § 52-95; Practice Book § 113. If a demurrer to a plaintiff's complaint is sustained, the plaintiff may amend the complaint, as of right, within fifteen days. Practice Book § 131. Although no such right is expressly granted to defendants, amendments are generally freely allowed. 1 Stephenson, supra, § 119(c).

The ruling on a demurrer, especially where the issue involved is the legal sufficiency of the cause of action or special defense, is likely to have a substantial impact on the ultimate disposition of the case. Nevertheless, a party against whom the ruling is made is often foreclosed from appealing it after final judgment. It has long been the law in Connecticut that when a demurrer is Overruled, the correctness of the ruling may always be raised on appeal. Hunter's Appeal, 71 Conn. 189, 41 A. 557 (1898). When a demurrer is Sustained, however, it is the rule that unless the party whose pleading has been ruled insufficient chooses to stand on the pleadings and appeal from the judgment rendered thereon, the filing of any further pleading will be regarded as a waiver and withdrawal of the disputed pleading, and the right to appeal the ruling will be lost. Good Humor Corporation v. Ricciuti,160 Conn. 133, 135-36, 273 A.2d 886 (1970); Panaroni v. Johnson, 158 Conn. 92, 103, 256 A.2d 246 (1969); Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, 554, 227 A.2d 418 (1967); Grady v. Kennedy, 145 Conn. 579, 584, 145 A.2d 124 (1958); West v. Lewis Oyster Co., 99 Conn. 55, 67, 121 A. 462 (1923); Mitchell v. Smith, 74 Conn. 125, 127-28, 49 A. 909 (1901); Boland v. O'Neil, 72 Conn. 217, 220, 44 A. 15 (1899); 1 Stephenson, supra, § 119(b), (c).

There is much to justify this rule when applied to a plaintiff. Because two complaints cannot coexist in the same action, the filing of a substituted or amended complaint must of necessity remove the original pleading from the file. See Good Humor Corporation v. Ricciuti, supra, 160 Conn. 137, 273 A.2d 886. Moreover, a plaintiff against whom a demurrer has been sustained can stand on the pleadings, allow the entry of judgment and appeal the ruling. If the appeal is not successful, a new complaint grounded on another legal theory can usually be filed. See General Statutes § 52-592; Ross Realty Corporation v. Surkis, 163 Conn. 388, 392-93, 311 A.2d 74 (1972); Bassett v. Foster, 116 Conn. 29, 30-31, 163 A. 456 (1932); Johnson v. Wheeler, 108 Conn. 484, 488, 143 A. 898 (1928); but cf. Stamford Dock & Realty Corporation v. Stamford, 124 Conn. 341, 342n, 200 A. 343 (1938).

The situation is different, however, when the rule is applied to defendants, and it is a demurrer to a Special defense which has been sustained. First, because several special defenses can be filed in response to a single complaint, the filing of a new special defense does not implicitly withdraw a defense previously filed. Second, a defendant who chooses to stand on the pleadings and appeal the ruling on a demurrer must forever forego the right to a trial on the merits if the appeal is lost. Thus, it is clearly desirable to distinguish between a complaint on the one hand and a special defense on the other before applying the rule that amending the pleadings after a demurrer is sustained waives the right to appeal the ruling on the original pleading. ⁷ The cases which have relied on the rule and found the right to appeal waived do not appear to have made such a distinction. E. g. Panaroni v. Johnson, supra (dimurrer to defense); West v. Lewis Oyster Co., supra (demurrer to defense and cross-complaint); Mitchell v. Smith, supra (demurrer to defense).

Under some circumstances, after a demurrer to a special defense has been sustained it may be possible to defend on the merits without waiving the right to appeal the ruling on the demurrer. For example, if the state of the pleadings is such at the time the demurrer is sustained that the defendant need not amend the answer in any way before going to trial, then the issue can be preserved for appeal. Scott v. Scott, 83 Conn. 634, 636, 78 A. 314 (1910); ⁸ Maltbie, Conn.App.Proc. § 65. Also, in Falzone v. Gruner, 132 Conn. 415, 418, 45 A.2d 153 (1945), there is dictum to the effect that a defendant who files a "second" or "additional special defense," rather than an entirely new answer, does not waive the right to a review of a ruling sustaining a demurrer. Although this alternative would appear to provide some recourse for a defendant confronted by the waiver rule, it has the drawback of characterizing a waiver by the label applied to a new pleading, and a defendant will often find it difficult to amend without waiving. ⁹ Another possibility is to reintroduce the issue during the course of the trial, as in a proffer of evidence in support of the defense ruled out or in a request to charge the jury. An adverse evidentiary ruling or a refusal to charge can then be claimed as error on appeal. See 1 Stephenson, supra, § 119(c). ¹⁰

Thus, although some defendants may have the good fortune to obtain a review of a ruling sustaining a demurrer, many more will be foreclosed by the necessity of amending their pleadings. This is not consistent with our long-standing policy of permitting a defendant to raise all available defenses in the same action. Hunter's Appeal, supra, was the first case to allow an appeal from the overruling of a demurrer where the demurring party had pleaded over and the case had gone to trial on the merits. Up until that time, pleading over after the overruling of a demurrer was considered a waiver of the demurrer and of any error in the ruling of the court. In justifying its decision to alter the prevailing practice, the court emphasized that then General Statutes (Rev.1888) § 1014 (now General Statutes § 52-95) "gives an absolute right to plead over (after demurrer overruled), with the manifest intent of enabling a defendant to take every objection which might lie open to him, in one and the same suit, instead of either confining him to an election between matters of law and matters of fact, or leaving any relaxation of this rule of the common law to the discretion of the court. To make this right fully valuable, it must be protected by a corresponding right of review." Hunter's Appeal, supra, 71 Conn. 198-99, 41 A. 561. Therefore, to be...