Weintraub v. Richard Dahn, Inc.

• Decision Date: 16 November 1982
• Citation: 188 Conn. 570,452 A.2d 117
• Court: Connecticut Supreme Court
• Parties: David WEINTRAUB et al. v. RICHARD DAHN, INC.

Page 117

452 A.2d 117

188 Conn. 570

David WEINTRAUB et al. v. RICHARD DAHN, INC.

Supreme Court of Connecticut.

Argued Oct. 8, 1982.

Decided Nov. 16, 1982.

Patrick A. Cosgrove, West Hartford, for appellant (third party defendant).

Felix J. Springer, Hartford, for appellee (third party plaintiff).

Before PETERS, HEALEY, PARSKEY, SHEA and SPONZO, JJ.

PER CURIAM.

This appeal arises out of an action for indemnification. The plaintiffs, David and Shirley C. Weintraub sued the defendant, Richard Dahn, Inc. (hereinafter Dahn), for damage caused by a truck driven by Dahn's employee which was delivering a load of stone in the course of the construction of a house and swimming pool on their property. The defendant, in turn, brought a third party action against the general contractor, Milton Factor and Company (hereinafter Factor), seeking indemnification for any losses resulting from the initial suit. The third party complaint alleged that employees of the general contractor, Factor, had negligently directed the driver as he was backing the truck to the point where the accident occurred and that their negligence was the primary cause of the damage. Factor has appealed from the judgment rendered against it as a third party defendant. It claims error in the trial below upon three grounds: (1) the refusal to grant a directed verdict in its favor at the close of the evidence; (2) the failure to charge the jury as requested and to correct the supplemental charge in accordance with the exceptions taken; and (3) the denial of a motion to set aside the verdict. We find no error.

We need not address the merits of Factor's first claim because its brief fails to comport with the requirements of Practice Book § 3060F(b) and (c). Section 3060F(b) requires each brief to contain a statement of facts which is supported by references to the location of that information in the record or transcript. An appellant cannot rely on facts unless they are set forth in this statement or are otherwise incorporated in the brief with references to the transcript. Practice Book § 3060F(b) and (c). Factor claims a directed verdict should have been granted because Dahn failed to prove the necessary elements of an indemnification claim. The facts cited by Factor to require a directed verdict, however, are not contained in the statement of facts nor is the court referred to the portions of the transcript which support them.

This court also need not reach the merits of the claims regarding the jury charge and the supplemental charge because Factor has failed to comply with the mandatory procedures of this court. When claiming error in a trial court's refusal to charge as requested, a party is required to print in its brief a verbatim statement of the relevant portions of the charge requested, the charge as given by the trial court and any relevant exceptions. Practice Book § 3060F(c)(1). In addition, the party must print in narrative form any evidence which it claims would entitle it to the requested charge, with proper references to the transcript or record. Id. When claiming error in the charge to the jury a party's brief must include a verbatim statement of all relevant portions of the charge and exceptions thereto. Practice Book § 3060F(c)(2). Evidence relevant to the error must be printed in narrative form with appropriate references to the transcript. Id. Because Factor's brief does not comply with those provisions, we decline to consider these claims further. Duley v. Plourde, 170 Conn. 482, 488-89, 365 A.2d 1148 (1976); see State v. DeWitt, 177 Conn. 637, 643, 419 A.2d 861 (1979).

As its final claim, Factor argues that the trial court erred in failing to set aside the jury verdict as a matter of law. It maintains that the acts alleged against Dahn ¹ were acts of an affirmative nature. Therefore, it argues, the finding of negligence against Dahn precludes a judgment against Factor because indemnification is barred where the party seeking indemnification was "guilty of affirmative misconduct which was a proximate cause of the injury in question." Preferred Accident Ins. Co. v. Musante, Berman & Steinberg Co., 133 Conn. 536, 542, 52 A.2d 862 (1947).

In essence, Factor contends that, because the acts alleged against Dahn are properly classified as malfeasance rather than nonfeasance, Dahn's negligence was necessarily primary and it was barred from recovery. We disagree. The jury did deliver a verdict against Dahn, thus finding it guilty of some act of personal negligence. Personal negligence, however, may be primary or secondary. Kaplan v. Merberg Wrecking Corporation, 152 Conn. 405, 415, 207 A.2d 732 (1965). A third party plaintiff who is only secondarily negligent may still recover from a third party defendant whose negligence is primary. Id.

In Kaplan v. Merberg Wrecking Corporation, supra, this court set forth the essential elements for finding that a...