Wesson v. F. M. Heritage Co.

• Decision Date: 10 February 1978
• Citation: 386 A.2d 217,174 Conn. 236
• Court: Connecticut Supreme Court
• Parties: William H. WESSON v. F. M. HERITAGE COMPANY et al.

Page 217

386 A.2d 217

174 Conn. 236

William H. WESSON v. F. M. HERITAGE COMPANY et al.

Supreme Court of Connecticut.

Argued Dec. 7, 1977.

Decided Feb. 10, 1978.

David M. Reilly, Jr., New Haven, for appellants (defendants).

Edward T. Dodd, Jr., Waterbury, with whom, on brief, was Jeremiah M. Keefe, Waterbury, for appellee (plaintiff).

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

HOUSE, Chief Justice.

This action was commenced by the plaintiff's writ, summons and complaint filed August 27, 1973. It alleged that the plaintiff had been injured when he fell on steps in the defendants' cocktail lounge located in the Harrison Inn at Heritage Village in Southbury on February 4, 1973, and that the fall was due to the negligence of the defendants. After the pleadings had been closed, other counsel appeared for the plaintiff and on February 11, 1976, moved for permission to amend the complaint to allege that the fall had occurred at approximately 11:30 p. m., on February 3, 1973, rather than on the date of February 4. The defendants filed a formal objection to the motion to amend and attached a letter signed by Attorney Emmet P. Nichols and dated February 7, 1973. The letter stated that his law firm represented the plaintiff who fell on the premises of the defendants "on February 4th at approximately 1:00 a. m. on the stairs leading from the coat rack area to the cocktail lounge next to the bandstand." It informed the defendants that if they were insured they should immediately turn the letter over to their insurance company for its immediate attention and in the event that they were not insured they or their attorney should immediately upon receipt of the letter contact his office.

At argument on the motion to amend the complaint, the defendants vigorously opposed the granting of the motion as irreparably prejudicial and untimely, pointing out that plaintiff's attorney had on February 7, 1973, informed the defendants that the fall had occurred at 1 a. m. on February 4 and that in reliance on this representation by plaintiff's attorney and the allegations of the August 16, 1973, complaint the defendants had conducted their investigation and prepared their defense as to the happening of such a fall on February 4, at 1 a. m. That investigation included questioning of employees who were present in the cocktail lounge at 1 a. m. on February 4, 1973. None of the employees was still employed by the defendant in 1976 when the complaint was amended. One of them lived in Florida, one had died and the whereabouts of another was unknown. As late as January 18, 1976, the defendants, in preparation for trial, had taken the deposition of the manager of the lounge who had been present on the night in question from 11:45 p. m. to 2 a. m., was in the area described in Attorney Nichols' letter and knew of no fall. The court nevertheless granted the plaintiff permission to amend his complaint to change the date of the alleged fall and the time from that which had been represented by the plaintiff's counsel. The case proceeded to trial and resulted in a verdict for the plaintiff which the court refused to set aside. The defendants took this appeal from the judgment rendered on the verdict.

It is unnecessary to discuss all of the defendants' claims of error. Those addressed to the trial court's ruling permitting the late amendment to the complaint and to portions of its charge to the jury are dispositive of the merits of the appeal.

"Our courts have pursued a liberal policy in allowing amendments." Johnson v. Toscano, 144 Conn. 582, 587, 136 A.2d 341, 344; Practice Book §§ 131, 132. Plaintiffs may without permission of the court amend their complaints during the first thirty days after the return day; § 131; and thereafter by order of or permission granted by the court. § 132. Rulings on motions to amend pleadings lie in the sound discretion of the court but that discretion is a legal discretion and is subject to review. Robinson v. Faulkner, 163 Conn. 365, 376, 306 A.2d 857; Tammaro v. Ledewitz, 157 Conn. 346, 350, 254 A.2d 458; Maltbie, Conn.App.Proc. § 63. As this court observed in DuBose v. Carabetta, 161 Conn. 254, [174 Conn. 240] 263, 287 A.2d 357, 361: "In determining whether there has been an abuse of discretion, much depends on the circumstances of each case. Factors that should be considered include unreasonable delay, fairness to the opposing parties and the negligence of the party offering the amendment. Cummings v. General Motors Corporation,146 Conn. 443, 449, 151 A.2d 884; Antonofsky v. Goldberg, 144 Conn. 594, 597, 136 A.2d 338."

In the circumstances of this case, we conclude that the trial court did abuse its discretion in permitting the late filing of the amendment to the complaint to change the date of the alleged fall and the time of it as it had been represented to the defendants by the plaintiff's counsel, relied upon by the defendants and alleged in the complaint. Such an amendment of date and time would probably not be objectionable in the usual automobile accident case, for example, where both parties are fully aware of the incident and its time and place. Here the circumstances of the plaintiff's alleged fall at a late hour in a cocktail lounge where patrons come and go and lighting conditions change present quite a different situation. The precise time of the incident was obviously an important matter for the defendants in searching for witnesses who might have observed a fall or could testify to the conditions as they existed at the time of the fall as claimed by the plaintiff.

Significantly, at the trial the court excluded testimony in a deposition which had been taken by the defendants before the complaint was amended and on which the defendants had relied. The deposition was from a former manager employed by the defendants who was present in the cocktail lounge from 11:45 p. m. to 2 a. m. According to the excluded testimony in his deposition, he was present during that time in the area described in Attorney Nichols' letter, knew of no fall, upon receiving notice of the alleged 1 a. m. fall checked with other employees present who would know of any fall and learned of none, and, further, described the existing lighting and conditions during the period from 11:45 p. m. to 2 a. m. The court excluded the testimony because it did not cover the conditions and lighting and circumstances as of 11:30 which, because of the court's permitted change in the complaint, was, at the time of trial, the alleged time of the fall.

Further material considerations are the long delay before the plaintiff sought to amend his complaint and what transpired in the meantime. As we have noted, the writ, summons...