Sanders v. Officers Club of Connecticut, Inc.

• Decision Date: 28 May 1985
• Docket Number: No. 10575,10575
• Citation: 493 A.2d 184,196 Conn. 341
• Court: Connecticut Supreme Court
• Parties: Glenda SANDERS, Administratrix of the Estate of William Sanders et al. v. OFFICERS CLUB OF CONNECTICUT, INCORPORATED, et al.

Page 184

493 A.2d 184

196 Conn. 341

Glenda SANDERS, Administratrix of the Estate of William Sanders et al. v. OFFICERS CLUB OF CONNECTICUT, INCORPORATED, et al.

No. 10575.

Supreme Court of Connecticut.

Argued Jan. 8, 1985.

Decided May 28, 1985.

[196 Conn. 342] F. Timothy McNamara, Hartford, with whom, on the brief, was Thomas W. Mochnick, Hartford, for appellant-appellee (plaintiff Charles L. Dickinson).

Jacob H. Channin, Hartford, with whom, on the brief, was David M. Roth, West Hartford, for appellee-appellant (defendant).

Before PETERS, C.J., and PARSKEY, SHEA, DANNEHY and BIELUCH, JJ.

DANNEHY, Associate Justice.

These are cross appeals from a judgment after a trial by jury awarding damages to the plaintiff, Charles L. Dickinson, for personal injuries which he claimed were caused by the intoxication of a person to whom the defendant, the Officers Club of Connecticut, Incorporated, or its agents, servants and/or employees had sold alcoholic liquor when that person was in an intoxicated condition in violation of § 30-102 of the General Statutes. ¹ We find no error.

The accident which underlies this litigation occurred at approximately 6:40 p.m. in the evening of February 19, 1976, on Route 84 in Hartford. Minutes earlier, William Sanders was riding as a passenger in the front seat of a pickup truck operated by Charles L. Dickinson, going easterly on Route 84 in Hartford with a 1967 Ford Mustang owned by Sanders in tow. Both vehicles carried lighting devices designed for emergency use which were kept lighted in front of the truck and in the rear of the Mustang. In the vicinity of the Asylum Avenue entrance ramp to Route 84 Dickinson stopped the truck and got out to examine the hitch. Sanders remained in the truck until Dickinson observed that the hitch was loose on the passenger side of the Mustang. Sanders then got out and assumed a squatting position between the vehicles to tighten the hitch. Dickinson stood on the driver's side and to the rear of the truck. Minutes after Dickinson stopped, Louis Doerschuck ran the motor vehicle he was driving eastbound on Route 84 into the rear of the Mustang. The impact forced the Mustang to collide with the truck. Sanders and Dickinson were crushed between the truck and the Mustang. Following the collision, Sanders and Dickinson were taken by ambulance to a nearby hospital. There, Sanders died; Dickinson survived his injuries.

This case was commenced by the plaintiff, Charles L. Dickinson, as a separate and distinct cause of action prefaced by the words SECOND COUNT to recover damages for personal injuries which was joined in one complaint with a separate and distinct cause of action prefaced by the words FIRST COUNT for wrongful death brought by the administratrix of the estate of William Sanders, deceased. Both counts alleged a cause of action for damages based upon a violation of § 30-102 of the General Statutes, popularly known as the Dram Shop Act, against the Officers Club of Connecticut, Incorporated, the defendant. ² The counts were identical except for the allegations as to the injuries received. See Practice Book § 138. Doerschuck was not made a party defendant in either action.

When the complaint was filed on June 7, 1976, the same attorney represented both the plaintiff and the decedent's estate. Thereafter, on September 29, 1976, a different attorney filed an appearance for the plaintiff Charles L. Dickinson only "[i]n addition to appearance already on file of Riscassi & Davis." Then on March 17, 1978, the administratrix of the estate of William Sanders, deceased, was permitted to file a substitute complaint containing count one of the original complaint and afterward, on August 10, 1979, the plaintiff was allowed to file an amended complaint containing count two of the original complaint.

The answer to the plaintiff's amended complaint denied all of the allegations of the complaint except the allegations that the defendant conducted a club with restaurant facilities known as the Officers Club of Connecticut, Incorporated at 360 Broad Street in Hartford where Eugene J. Fortin was permittee. ³ The answer contained special defenses charging contributory negligence, setting up a defense of assumption of risk, and pleading the one-year statute of limitations; General Statutes § 30-102; in bar of the action. The answer also asserted that a prior judgment for $55,000 entered in favor of the plaintiff and against Doerschuck operated to release and discharge the defendant from any liability to the plaintiff. ⁴

The trial judge, Higgins, J., sua sponte struck each of the defendant's special defenses without articulating any reason for his action. The jury awarded the plaintiff a verdict in the amount of $504,390, upon which the court rendered judgment. The defendant filed motions to set aside the verdict and render judgment in accordance with its motion for a directed verdict, or in the alternative, for a reduction of the jury's award. The court denied the motions to set aside the verdict and render judgment notwithstanding the verdict but reduced the jury's award to $20,000. The plaintiff appealed as to damages only. The defendant cross appealed, alleging that the evidence was insufficient to support the verdict, that the trial court erred in denying the motions to set aside the verdict and render judgment in accordance with the motion for a directed verdict, and claiming error in certain jury instructions as well as in several evidentiary matters.

The first issue is one of timeliness. The case was originally brought by the administratrix of the estate of William Sanders, deceased, and Charles L. Dickinson, the plaintiff. One lawyer represented both parties. When the writ was filed on June 7, 1976, separate and distinct causes of action were joined in one complaint and each party's cause of action was set forth in a separate count. It clearly appears there was then a first count, representing the decedent's cause of action as distinct from that of the plaintiff in the second count. The second count setting forth the plaintiff's cause of action was not completely reiterative. Pertinent paragraphs of the first count were incorporated by reference. After different counsel appeared for the plaintiff, the attorney for the decedent requested permission to file a substitute complaint. Permission was granted and the decedent filed a substitute complaint on March 13, 1978. Then followed a period of inactivity until July 17, 1979, when through new counsel, the plaintiff requested permission to file an amended complaint. The amendment simply inserted those paragraphs in the plaintiff's complaint which were originally incorporated by reference to the first count. The defendant objected. The objection was overruled.

No question is raised as to the power of the trial court to allow the amendment. The defendant contends that the filing of the decedent's substitute complaint on March 13, 1978, operated as a withdrawal of the original complaint and put the plaintiff's amended complaint within the prohibition of the one-year statute of limitations. See General Statutes § 30-102. The argument is so obviously untenable as not to require extended discussion. Since the substitute complaint, the plaintiff was always as he was before it was filed. The filing of the substitute complaint did not alter the plaintiff's position in any respect. Only the first count was out of the complaint. The second count remained. The amendment was necessary to comply with the technicalities of our procedure in order to set forth the allegations previously incorporated by reference. Such an amendment can be allowed to a separate part of a complaint. The defendant's argument therefore fails.

The defendant has claimed error with regard to the admission and exclusion of evidence. All of the claims involve allegations of abuse of the trial court's broad discretion to determine the relevancy and admissibility of evidence at trial. The plaintiff's and the decedent's cases were tried together. Much of the difficulty of resolving the defendant's claims depends largely upon the unusual presentation of the facts. Practice Book § 3060F(d)(3) unmistakably requires that the brief set out " 'the question or offer of exhibit; the objection and the ground on which it was based; the ground on which the evidence was claimed to be admissible; the answer, if any; the ruling and any exception.' " Southern Connecticut Gas Co. v. Housing Authority, 191 Conn. 514, 523 n. 5, 468 A.2d 574 (1983). The claims made clearly fail to comply with that requirement. Had it been followed, our task might have been easier and the briefs of the attorneys more directly to the point of showing plain error, or that enforcement of our rule will cause injustice. State v. Vass, 191 Conn. 604, 621, 469 A.2d 767 (1983). It may even be that an ample statement by the trial court could have supplied for us whatever might be deemed to be missing from the defendant's brief. We are under no duty to search a transcript of the testimony to find a ruling under attack. But we did. Here were two actions which were tried together. We were unable to determine either the order of trial or whether the objections and rulings applied to only one or both of the cases. Full-fledged review of the evidentiary claims is foreclosed by the defendant's failure in its brief to adhere to our established procedure.

The gravamen of the defendant's evidentiary argument is that there was no evidence sufficient to warrant the jury's finding that Louis Doerschuck was intoxicated at the time the defendant sold him alcoholic liquor. The defendant argues that the trial court should have rendered a directed judgment or set aside the verdict. ⁵ We set out the evidence in its aspect most favorable to the plaintiff to determine if upon any reasonable view of the evidence there is found any combination of circumstances from which a rational inference may be drawn in...