Smith v. Housing Authority of City of Waterbury

Decision Date30 October 1956
Citation144 Conn. 13,127 A.2d 45
PartiesMary SMITH et al. v. The HOUSING AUTHORITY OF the CITY OF WATERBURY. Supreme Court of Errors of Connecticut
CourtConnecticut Supreme Court

William J. Secor, Jr., Waterbury, with whom, on the brief, was John H. Cassidy, Jr., Waterbury, for appellants (defendants).

Francis B. Feeley, Waterbury, with whom was Emmet P. Nichols, Waterbury, for appellee (named plaintiff).

Before INGLIS, C. J., O'SULLIVAN and DALY, JJ., and TROLAND and COVELLO, Superior Judges.

O'SULLIVAN, Associate Justice.

Mary Smith and William Smith brought this action against the defendant. Subsequently, William died and it was agreed that the case might be tried as if Mary were the sole plaintiff. The trial was to the jury, who returned a plaintiff's verdict. Thereafter the defendant filed two motions, one to set the verdict aside and the other for judgment notwithstanding the verdict. Both were denied by the court, and the defendant has appealed from the judgment then rendered.

Assignments of error are addressed to the denial of the two motions referred to. Contrary to the former practice, which required an appellant to file a transcript of evidence when he claimed error in the denial of a motion to set the verdict aside, Rev.1930, § 5692, the present practice gives him alternative methods to pursue. The rule now permits an appellant to state in his brief the claim that the court erred in refusing to set aside the verdict and then to print no evidence or to print all relevant evidence. Practice Book, § 447. In the case at bar the defendant chose not to print all relevant evidence. It thereupon devolved on the plaintiff, if she wished to justify the court's denial of the motions, to file an appendix incorporating, preferably in narrative form, all the evidence on which she relied. Instead of taking this affirmative action, she filed no appendix, thus leaving the record devoid of any evidence to sustain the verdict. See Firszt v. Kalinowski, 109 Conn. 732, 144 A. 894; McCann v. McGuire, 83 Conn. 445, 448, 76 A. 1003; Maltbie, Conn.App.Proc., § 115. It follows that, on technical grounds, error must be found in the denial of the motions, and for this reason alone a new trial must be ordered. There is, however, another reason requiring that action.

The complaint was in two counts but we may ignore the second count. The first alleged that on July 7, 1953, the defendant was operating a housing project in Waterbury and the plaintiff, as a tenant was occupying one of the many apartments of the project; that a part of her apartment consisted of a rear porch, which was under the control of the defendant; that the plaintiff, while walking on the porch, was injured when the flooring gave way; and that this was due to the negligence of the defendant in failing to repair a defective condition of which it actually or constructively knew, and in failing to warn the plaintiff of the inherent danger. So far as the issues created by the complaint and answer are concerned, the plaintiff's claims of proof were designed to prove the foregoing allegations and no others.

The court, nevertheless, charged that if certain facts were established by the evidence, the jury might return a verdict for the plaintiff in either of two situations; one would be where they found that the defendant had retained within its exclusive control the repairing of the floor of the back porch, and the other, where they found that the defendant had voluntarily assumed the repairing of the defective condition, to which its attention had been called. The defendant...

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29 cases
  • Myrick v. Jack A. Halprin, Inc.
    • United States
    • Connecticut Superior Court
    • November 16, 2018
    ... ... court is guided by appellate authority. "Directed ... verdicts are disfavored because ... See Def. Ex. D, pars. 21(A) and (B), pp. 8-9; Smith v ... Housing Authority, 144 Conn. 13, 16-17, 127 ... City." ... Ellis’ ... after hours parties ... ...
  • Novella v. Hartford Acc. & Indem. Co.
    • United States
    • Connecticut Supreme Court
    • July 27, 1972
    ...action is tested by the evidence contained in the appendices to the briefs. Practice Book §§ 716, 718, 720-721; Smith v. Housing Authority, 144 Conn. 13, 14, 127 A.2d 45; Maltbie, Conn.App.Proc. § 185, p. 227.' Kelly v. Bliss, 160 Conn. 128, 130, 273 A.2d 873, 875; Kostyal v. Cass, 163 Conn......
  • Masterson v. Atherton
    • United States
    • Connecticut Supreme Court
    • January 16, 1962 for the reasonably to be anticipated uses which the tenant would make of them) within the demised area. Smith v. Housing Authority, 144 Conn. 13, 16, 127 A.2d 45; Seaman v. Henriques, 139 Conn. 561, 567, 95 A.2d 701; White v. DeVito Realty Co., 120 Conn. 331, 334, 180 A. 461; Valin v. ......
  • Panaroni v. Johnson
    • United States
    • Connecticut Supreme Court
    • April 1, 1969 abstention from making any repairs would be the equivalent of retention of control of the leased premises. Smith v. Housing Authority, 144 Conn. 13, 16, 17, 127 A.2d 45. The written lease read as a whole cannot be said to definitely or expressly resolve the issue of control. Thus the ......
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