Summary
holding that the trial court erred by failing to grant the defendant's motion, made at the close of all the evidence, to direct a verdict "on the ground . . . that the only cause of action set forth in the complaint was . . . defective one sounding in slander"
Summary of this case from Rivera v. SitarisOpinion
It Is incumbent on a plaintiff to allege some recognizable cause of action in his complaint. If he fails to do so, it is not the burden of the defendant to attempt to correct the deficiency by motion, demurrer or otherwise. The plaintiff sought damages for emotional upset and resulting physical injury alleged to have been caused by the conduct of the defendant F in publicly and "falsely" accusing her "in 8 loud, belligerent and discourteous manner" of not paying for the food she was eating. The complaint, by its use of these words, did not state a cause of action for intentionally subjecting the plaintiff to emotional distress or one for negligently doing so. Nor did it state a cause of action for slander or any other recognizable cause of action. Consequently, the verdict against F could not stand and his motion for judgment notwithstanding the verdict should have been granted.
Argued April 10, 1959
Decided May 8, 1959
Action to recover damages for personal injuries, alleged to have been caused by tortious use of language, brought to the Court of Common Pleas in Hartford County and tried to the jury before Bogdanski, J.; verdict and judgment for the named plaintiff against the defendant Fink and appeal by him. Error; judgment directed.
The appellee filed a motion for reargument which was denied.
William P. Aspell, with whom was James T. Healey, for the appellant (defendant Fink).
Morton W. Appleton, with whom was Kenneth S. Halpern, for the appellee (named plaintiff).
The complaint alleged that the plaintiff Sophie Stavnezer, while a patron in a restaurant owned by the named defendant and managed by the defendant Hyman Fink, "was approached by . . . Fink, . . . Who, in front of the many people then present, falsely accused said plaintiff in a loud belligerent and discourteous manner that she did not pay for . . . [the] food [which she was eating], and he degraded, humiliated and disgraced her in the presence of the divers people then present." Mrs. Stavnezer, hereinafter called the plaintiff, sought damages for an emotional upset and resulting physical injury claimed to have been caused by this conduct.
Throughout the trial, the court and the defendants were beset with difficulties in attempting to determine what, if any, cause of action was alleged in the complaint. The plaintiff made no effort to clarify the language of the complaint. In this court, she seems to claim that if any clarification of the complaint was necessary in order to determine her claimed ground of recovery, it was the burden of the defendants, by appropriate motions addressed to the complaint or by other procedure, to compel her to clarify it. This is not the law. It is incumbent on a plaintiff to allege some recognizable cause of action in his complaint. If he fails so to do, it is not the burden of the defendant to attempt to correct the deficiency, either by motion, demurrer or otherwise. Smith v: Housing Authority, 144 Conn. 13, 16, 127 A.2d 45. In this day of crowded dockets, a complaint must inform the court and the defendant, with reasonable clarity, of the cause of action to be tried. See Antonofsky v. Goldberg, 144 Conn. 594, 598, 136 A.2d 338.
It is the claim of the plaintiff in this court that the word "falsely," as used in the quoted language in the complaint, may embrace either an intentionally untrue statement or a negligently untrue statement and that she is entitled to claim both meanings simultaneously. From this premise, she argues that the complaint alleged two causes of action under her construction of the rule of Urban v. Hartford Gas Co., 139 Conn. 301, 93 A.2d 292: (1) an intentional subjection of the plaintiff to emotional distress and (2) a negligent subjection of the plaintiff to emotional distress. The complaint does not allege either cause of action. See 2 Harper James, Torts, 18.4; note, 64 A.L.R.2d 100, 149. Its allegations more nearly approach a statement of a cause of action in slander than anything else, although for that purpose they are inadequate and the court properly took that cause of action from the jury. Urban v. Hartford Gas Co., supra, 308. The plaintiff succeeded in inducing the court to submit the case to the jury on the issues of negligent misconduct and intentional misconduct, and the jury returned a verdict in favor of the plaintiff against the defendant Fink only. At the close of the evidence, the defendants moved for a directed verdict on the ground, inter alia, that the only cause of action set forth in the complaint was the defective one sounding in slander. The court reserved decision on this motion, except that in its charge it instructed the jury that the plaintiff could not recover on any claim of defamation. After the verdict, the defendant Fink moved for judgment notwithstanding the verdict in accordance with his motion for a directed verdict. Practice Book 234; Fisher v. Jackson, 142 Conn. 734, 738, 118 A.2d 316. The court should have granted the motion. Antonofsky v. Goldberg, supra, 599.