Teitelman v. Bloomstein

• Decision Date: 19 December 1967
• Citation: 155 Conn. 653,236 A.2d 900
• Court: Connecticut Supreme Court
• Parties: Edward H. TEITELMAN v. Herman BLOOMSTEIN.

Page 900

236 A.2d 900

155 Conn. 653

Edward H. TEITELMAN v. Herman BLOOMSTEIN.

Supreme Court of Connecticut.

Dec. 19, 1967.

Morris W. Mendlesohn and Charles Henchel, New Haven, for appellant (plaintiff).

Peter C. Dorsey, New Haven, for appellee (defendant).

Before ALCORN, HOUSE, COTTER, THIM and COVELLO, JJ.

HOUSE, Justice.

The plaintiff has appealed from a decision of the Court of Common Pleas denying his motion to set aside a directed verdict for the defendant. The appeal is defective in form because it is taken from the denial of the motion to set aside the verdict rather than from the final judgment. General Statutes § 52-263; Practice Book § 600; Palega v. Bulgajewski, 150 Conn. 695, 186 A.2d 801; Maltbie, Conn.App.Proc. § 183. The defendant, however, by failing to move to dismiss the appeal, has waived the defect. Desmarais v. Pinto, 147 Conn. 109, 110, 157 A.2d 596; Van Detti v. Parsons Bros., Inc., 146 Conn. 282, 283, 150 A.2d 200.

The plaintiff requested a finding so that this court could review two questions: Did the court abuse its discretion in refusing to grant the plaintiff's motion for a mistrial, and did the court err in directing a verdict for the defendant? The denial of a motion for a mistrial made in the course of the trial is an interlocutory ruling which can only be reviewed on the basis of a finding. Genuario v. Finkler, 136 Conn. 500, 502, 72 A.2d 57; State v. Williamson, 134 Conn. 203, 204, 56 A.2d 460; see Wooster v. Wm. C. A. Fischer Plumbing & Heating Co., 153 Conn. 700, 703, 220 A.2d 449. Accordingly, a relatively simple type of finding as prescribed by § 649 of the Practice Book and limited to the circumstances of the ruling was proper and necessary to a review of that ruling by this court. See Practice Book § 609. No finding relevant to the general issue of liability is, however, necessary or appropriate for a review of the court's refusal to set aside a verdict where it is claimed, as it was in this case, that the evidence and permissible inferences warranted a verdict different from that rendered. In such circumstances the action of the court is to be tested, not by a finding, but by the evidence contained in the appendices to the briefs, and a finding serves no purpose. Unless the evidence is printed in the appendix there is no basis to consider the appeal on this ground. Practice Book §§ 716, 718, 720-722; Maltbie, Conn.App.Proc. § 185. Our decisions have made this abundantly clear. Among recent cases see, State v. Vars, 154 Conn. 255, 258, 224 A.2d 744; Hook v. Dubuque, 153 Conn. 113, 114, 214 A.2d 376; Chanosky v. City Building Supply Co., 152 Conn. 642, 643, 211 A.2d 141; Kingston v. Blake, 151 Conn. 714, 715, 201 A.2d 460; State v. Keating, 151 Conn. 592, 595, 200 A.2d 724, cert. denied sub nom., Joseph v. Connecticut, 379 U.S. 963, 85 S.Ct. 654, 13 L.Ed.2d 557; Sitnik v. National Propane Corporation, 151 Conn. 62, 67, 193 A.2d 503; Palega v. Bulgajewski, supra, 150 Conn. 696, 186 A.2d 801; State v. Weinrib, 140 Conn. 247, 248, 99 A.2d 145; Keeler v. General Products, Inc., 137 Conn. 247, 252, 75 A.2d 486. Present counsel were reminded of this requirement in Petrizzo v. Commercial Contractors Corporation, 152 Conn. 491, 493, 498, 208 A.2d 748. Nevertheless, the appendix to the plaintiff's brief contains no evidence whatsoever relevant to the issue of liability. Since it is the contention of the defendant that there was no evidence which would support the claim of the plaintiff that he had proven liability, the defendant's appendix, logically, contains no evidence which would aid the plaintiff. Accordingly, we have no factual basis upon which to review the plaintiff's claims that the evidence and the permissible inferences warranted a verdict for the plaintiff and that the court was in error in directing a verdict for the defendant and subsequently in refusing to set that verdict aside.

We can consult the court's memorandum of decision for a better understanding of the rationale of the decision on the motion for a mistrial and to ascertain the ground on which the court acted. . lupinacci v. Planning & Zoning Commission, 153 Conn. 694, 700, 220 A.2d 274; Rogers v. Great Atlantic & Pacific Tea Co., 148 Conn. 104, 106, 167 A.2d 712; Maltbie, Conn.App.Proc. § 152. It appears from the memorandum that, after the plaintiff had concluded the presentation of his case in chief, he rested, and the defendant thereupon rested without introducing any evidence and moved for a directed verdict in his favor, which the court granted. The memorandum discloses kthat the motion was granted on two grounds, either of which was sufficient to justify the action. The first ground was that there was no evidence as to what actually caused the plaintiff to fall. The court concluded: 'For the jury to have determined this case on the evidence presented before it, would have meant nothing less than resorting to sheer conjecture, surmise and speculation. Sigel v. Gordon, 117 Conn. 271, 275 (167 A. 719).' 'In a negligence action it is incumbent upon the plaintiff to allege and prove not only the negligence of the defendant but a causal relation between the negligence alleged and the damages claimed. A causal relation between the defendant's wrongful conduct and the plaintiff's injuries is a fundamental element without which a plaintiff has no case. Hence, this causal relation must be alleged and proved. Gothreau v. New York, N.H. & H.R. Co., 148 Conn. 65, 67, 167 A.2d 244; Kinderavich v. Palmer, 127 Conn. 85, 15 A.2d 83; Mahoney v. Beatman, 110 Conn. 184, 147 A. 762, 66 A.L.R. 1121; see Green, 'Proximate Cause in Connecticut Negligence Law,' 24 Conn.B.J. 24.' Lombardi v. J. A. Bergren Dairy Farms, Inc., 153 Conn. 19, 22, 213 A.2d 449, 450.

The second ground upon which the court predicated its decision was that the plaintiff had produced no evidence that the defendant had in his home a dangerous condition of which he knew or should have had knowledge. Proof of this allegation of the plaintiff's complaint was essential to any recovery by the plaintiff. As the accident occurred in New York, liability was to be determined by the law of that state. 'The creation and extent of liability in tort are fixed by the law of the state in which the tort is committed.' Bissonnette v. Bissonnette, 145 Conn. 733, 734, 142 A.2d 527, 528; Bohenek v. Niedzwiecki, 142 Conn. 278, 282, 113 A.2d 509; Gondek v. Pliska, 135 Conn. 610, 613, 67 A.2d 552. Under New York law, the plaintiff, as a social guest in the home of the defendant, had the status of a licensee, and to establish liability on the part of the defendant host for injuries alleged to have been caused by a defect on the premises it was necessary that the plaintiff allege and prove not only the existence of the alleged defect but that the defendant knew or should have had knowledge of its existence. Krause v. Alper, 4 N.Y.2d 518, 520, 176 N.Y.S.2d 349, 151 N.E.2d 895; Cesario v. Chiapparine, 21 A.D.2d 272, 276, 250 N.Y.S.2d 584. The court's memorandum of decision indicates that the plaintiff's proof of these essentials was lacking.

As we have already indicated, on this appeal the plaintiff has not printed in the appendix to his brief any evidence whatsoever relevant to the issue of liability. There is, consequently, nothing in the recore before us to suggest that the court was in error in its statements concerning the lack of evidence to prove both of these allegations. Nor is there any basis on which we can review the present assertions of the plaintiff that such evidence was in fact submitted for the jury's consideration. Our recital of the court's observations contained in the memorandum of decision is made only because they are necessary to a full understanding of the situation surrounding the court's denial of the motions to set aside the directed verdict and for a mistrial.

The remaining assignment of error all relate to the court's refusal to grant the plaintiff's motion for a mistrial. The court properly made a finding of fact so that its ruling on the motion for a mistrial could be reviewed on appeal. Practice Book § 609. It is subject to certain deletions and corrections claimed by the plaintiff since it recites some facts which are not supported by the record. We confine our consideration to the facts in the finding which are supported by the record, and we disregard the many argumentative characterizations and unsupported statements of fact, conclusion and belief with which the plaintiff's draft finding and brief are replete.

Certain facts contained in the court's finding relevant to the making of the motion and its denial are not disputed and are necessary to understand the circumstances of the motion and its denial. The defendant is the nephew of the plaintiff's wife and is a doctor living on Long Island, New York. He and the plaintiff had been friendly for a period of about ten years, and, as had been their pratice, in August, 1964, the plaintiff and his wife visited the defendant, who flew them in his own airplane from New Haven to Long Island. While taking a shower in the defendant's home, the plaintiff, in stepping out of the bathtub, slipped, fell and injured his left shoulder. There was a bathroom rug on the floor. In stepping from the bathtub, the plaintiff put his right foot on the rug without anything happening. As he put his left foot down, the rug slipped and the plaintiff fell. About four or five days after the accident, the plaintiff and the defendant looked at the rug, and the plaintiff observed some friction tape or black strips across the bottom of the rug, but he did not look long enough to be able to describe the condition of the tape. After his injury, the plaintiff was treated...