Marinelli v. Cutarelli

193 A.2d 727, 2 Conn. Cir. Ct. 15, 1963 Conn. Cir. LEXIS 209
CourtConnecticut Appellate Court
DecidedMarch 14, 1963
DocketFile No. CV 5-612-232
StatusPublished
Cited by1 cases

This text of 193 A.2d 727 (Marinelli v. Cutarelli) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marinelli v. Cutarelli, 193 A.2d 727, 2 Conn. Cir. Ct. 15, 1963 Conn. Cir. LEXIS 209 (Colo. Ct. App. 1963).

Opinion

Rubinow, Chief Judge.

In this case, the plaintiffs are the owner-operator of a motor vehicle and a passenger therein; the defendants are the operator and the owner of another motor vehicle. We shall refer to the plaintiff operator as the plaintiff and the defendant operator as the defendant.

[17]*17Both vehicles were initially proceeding southerly on route 8 in Derby. The defendant, who was in back of the plaintiff, was traveling faster than the plaintiff and overtook him. As the defendant moved to the left to pass the plaintiff, the plaintiff’s vehicle veered to the right, ran off the traveled portion of the road, and collided with a highway fence. The crucial issue presented by the evidence was whether, as the plaintiffs claimed, the defendant’s vehicle struck the rear left of the plaintiff’s vehicle, causing the plaintiff to lose control of the vehicle, or whether, as the defendants claimed, the plaintiff lost control of his vehicle because of a blowout and a defective steering mechanism. The jury rendered a verdict for the defendants, and the plaintiffs have appealed.

The plaintiffs moved that the verdict be set aside on two grounds, first, that the verdict was against the evidence, and second, that an interpreter rendered an “incompetent and inadequate interpretation.” As to the first ground, there was ample evidence to support the defendant’s claim concerning the blowout and the defective steering mechanism. As to the second ground, it would suffice to note that the record contains no finding of facts to enable us to test the court’s ruling. Instead of referring to a finding, the assignment of error on this point merely makes a blanket reference to “the transcript of [the] witness’s testimony in the record.” In the absence of a finding setting forth, as a minimum, some instances of an alleged “incompetent and inadequate interpretation,” we cannot determine whether the court abused its discretion in denying the motion. “Our practice requires that every instruction, every ruling on evidence, or in the course of the entire trial, shall be tested on appeal in the light of the facts appearing in the finding in relation to the instruction [18]*18or ruling.” Munson v. Atwood, 108 Conn. 285, 290.

Nevertheless, in response to the plaintiffs’ assignment of error, we have examined the portions of transcript relevant to this issue. Neither the preliminary ruling of the court, i.e. that the interpreter was qualified, nor any ruling during the course of the interpreter’s testimony affords the plaintiffs any ground for a claim of error. The plaintiffs selected and offered the interpreter. By doing so, they impliedly asked the court to rule that the interpreter was competent. This the court did, after both parties had interrogated the interpreter. The plaintiffs cannot complain about this preliminary ruling, which they asked the court to make. Battistelli v. Connohio, Inc., 138 Conn. 646, 649; see Thiede v. Utah Territory, 159 U.S. 510, 519. Of course, such a preliminary ruling would not bar the plaintiffs from making a timely objection to the interpreter subsequently in the course of his testimony. State v. Deslovers, 40 R.I. 89, 115. No such objection was made, however, even though the interpreter’s testimony was lengthy, covering sixty-seven typewritten pages of the transcript. This failure to object to the interpreter “distinctly . . . at the trial” leaves the record barren of any ruling for us to consider on this point. Practice Book §409; Cir. Ct. Rule 7.51.1.

Two rulings by the court during the trial were also assigned as error. One of these — the court’s ruling in allowing a substituted special defense to be filed — was abandoned during argument. The other — the court’s ruling in admitting two photographs of the defendants’ motor vehicle — was plainly within the court’s discretion. The testimony preliminary to the admission of the photographs was to the effect that the photographs showed the [19]*19condition of the defendant’s vehicle when it stopped, after the plaintiff’s vehicle ran off the road. This was sufficient to warrant the court’s admitting the photographs. Cagianello v. Hartford, 135 Conn. 473, 475. Once this foundation had been laid, alleged inaccuracies in the photographs were a proper subject for cross-examination, rebuttal testimony, or argument, but were not a basis for excluding the exhibits.

The remaining assignments of error attack the charge. We shall state such additional facts and claims of proof as are necessary to a discussion of these assignments. The plaintiffs take exception to the charge because, notwithstanding their requests, the court failed to charge with respect to three statutes, §§ 14-245, 14-232 and 14-224.1 Section 14-245 was plainly inapplicable. Although the defendants’ special defense of contributory negligence specified that the plaintiff failed to stop “before entering Route 8” and “failed to grant the right of way to the defendant’s vehicle,” the defendants’ claims of proof contain nothing to support these allegations, and the claims of proof do not present this issue. The charge is tested by the claims of proof. Sears v. Curtis, 147 Conn. 311, 316. Furthermore, since the verdict was against both the plain[20]*20tiff passenger, to whom the defense of contributory negligence was inapplicable, and the plaintiff operator, the verdict necessarily imports that the jury found no actionable negligence on the part of the defendant. Cf. Ippolito v. Stafford, 141 Conn. 372, 374. Because of that finding, any error in the charge concerning the special defense of contributory negligence would be without significance. See Weinstein v. Hallas, 140 Conn. 387, 390.

The request relating to § 14-232 was phrased as follows: “The Court is requested to charge the jury on § 14-232, the pertinent part of which reads as follows: ‘. . . (1) the driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance and shall not again drive to the right side of the highway until safely clear of the overtaken vehicle....'"

This type of request hinders rather than helps; it requires the court to guess about the instruction that counsel wants. A request so worded does not comply with § 153 of the Practice Book, which applies to Circuit Court cases by virtue of Circuit Court Rule 1.1.1. As stated in §. 153, where a party intends “to claim the benefit of . . . any specific statute,” the request must refer to “the legal principle involved.” There must be “more than a mere reference to, or quotation of, the statute .... What is required is a request to charge ‘on the legal principle involved.’ This calls for a request explaining the meaning and interpretation of the statute in the light of the claims of proof in the case.” Lowell v. Daly, 148 Conn. 266, 269. Where a request to charge fails to comply with § 153, an exception subsequent to the charge, claiming a failure to charge on a specific statute, does not cure the defect. Lowell v. Daly, supra, 271.

[21]*21We do not, however, rest onr decision on this point on a procedural consideration alone.

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Bluebook (online)
193 A.2d 727, 2 Conn. Cir. Ct. 15, 1963 Conn. Cir. LEXIS 209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marinelli-v-cutarelli-connappct-1963.