Martyn v. Donlin

Decision Date25 February 1964
CourtConnecticut Supreme Court
PartiesMartha P. MARTYN, Administratrix (ESTATE of John S. MARTYN) v. Robert DONLIN et al. Supreme Court of Errors of Connecticut

William R. Davis, Hartford, with whom, on the brief, was Leon RisCassi, Hartford, for appellant (plaintiff).

Francis J. McCarthy, Hartford, with whom, on the brief, was Warren Maxwell, Hartford, for appellee (named defendant).

Richard W. Shettle, Asst. Corporation Counsel, for appellee (defendant city of Hartford).

Before KING, C. J., and MURPHY, SHEA, ALCORN and COMLEY, JJ.

KING, Chief Justice.

This was an action for the recovery of damages for the wrongful death of the plaintiff's decedent, who was shot, on April 20, 1958, just after midnight, by the defendant Robert Donlin, a regular police officer of the defendant city of Hartford, in the course of an attempt to effect the decedent's arrest. In the first count, damages were sought from Donlin. In the second count, damages were sought from the city under what is now § 7-465 of the General Statutes. That statute, under certain conditions, imposes liability on a municipality for damage caused by an employee 'if the employee * * * was acting in the performance of his duties and within the scope of his employment, and if * * * [the] injury * * * was not the result of any wilful or wanton act of such employee in the discharge of such duty'. See Allard v. City of Hartford, 151 Conn. ----, 197 A.2d 69, and cases such as Soucy v. Wysocki, 139 Conn. 622, 628, 96 A.2d 225, and Lentine v. McAvoy, 105 Conn. 528, 531, 136 A. 76. Presumably because of this limitation in the coverage of the statute, the first count of the complaint was very precisely drafted to allege that the decedent's death 'was not the result of any wilful or wanton act of * * * Dolin' and that the death 'was caused by the carelessness and negligence of * * * [Donlin] while acting within the scope of his employment as a police officer'. Thus under the first count recovery is sought against Donlin in negligence only, and not in assault and battery which is the more usual cause of action in cases such as this. See, for example, Lentine v. McAvoy, supra, 105 Conn. 529, 136 A. 76.

Whatever may be the full scope and effect of the statute, in no event may the municipality be held liable under it unless the municipal employee himself 'becomes obligated to pay [sums] by reason of the liability imposed upon * * * [him] by law for physical damages to person or property'. Consequently, unless there was error in the rendition of the judgment in Donlin's favor under the first count, there can be no error in the rendition of the judgment in favor of the defendant city under the second count.

The case was previously before this court on the defendants' appeal; error was found and a new trial was ordered. Martyn v. Donlin, 148 Conn. 27, 166 A.2d 856. The present appeal is taken from the judgment rendered on the defendants' verdicts on the first and second counts on the retrial. 1

We turn first to certain rulings on evidence. The plaintiff called Donlin as a witness. Since Donlin was an adverse party, the plaintiff, under § 52-178 of the General Statutes, was entitled to a statutory examination which would permit the use of leading questions 'which, * * * [prior to the statute], had ordinarily been permitted only in the case of a witness whom the court had found to be hostile or to have so testified as to have worked a surprise or deceit on the examining party.' Mendez v. Dorman, 151 Conn. 193, 197, 195 A.2d 561, 564. There is no claim that the plaintiff was not accorded this statutory examination. Thereafter, counsel for Donlin proceeded to cross-examine him, and in the course of the cross-examination counsel was permitted, over the plaintiff's objection, to ask leading questions. The plaintiff claims this should not have been allowed since Donlin was not hostile to himself. Since our statute removes the requirement of a finding of hostility in fact as a condition precedent to the allowance of leading questions on the statutory (direct) examination of an adverse party, the claim that such a finding is nonetheless a prerequisite to the right to ask leading questions on cross-examination by the adverse party's own counsel would be wholly unfair and is obviously without merit. See Degelos v. Fidelity & Casualty Co. of New York, 313 F.2d 809, 815 (5th Cir.); Brookbank v. Mathieu, 152 So.2d 526, 528 (Fla.App.). Cases on this point are collected in an annotation in 38 A.L.R.2d 952. There is nothing in the wording of our statute which, except for the elimination of the question of hostility in fact, is even suggestive of any legislative intent either to abridge or to enlarge the usual scope and manner of cross-examination even though it is conducted by counsel for an adverse party who had been called as a witness under the statute. See Bushnell v. Bushnell, 103 Conn. 583, 596, 131 A. 432, 44 A.L.R. 785; Mendez v. Dorman, supra. There was no error in permitting the use of leading questions in Donlin's cross-examination by his own counsel.

One further evidential claim is pursued in the brief. Donlin, on his statutory examination by the plaintiff, testified, in effect, that he filled out two application documents, a 'Health Questionnaire' and an application form, as prerequisites to his appointment as a member of the Hartford police force, and that the answers contained in each document were accurate and truthful. The two application documents were admitted in evidence as exhibits. Later on in his examination, however, he, in effect, did admit that those answers were not accurate and truthful. Notwithstanding this admission, the plaintiff, 'on the issue of credibility', offered in evidence certain other exhibits, the effect of which was also to indicate that Donlin's statements as to his previous good health, as made in his two application documents, were untrue. See cases such as Barlow Bros. Co. v. Parsons, 73 Conn. 696, 703, 49 A. 205. Donlin also testified that he had left school in the eleventh grade to join the armed forces. The exhibits just referred to also contained information as to Donlin's personal life and were offered to show, in addition to the above, that Donlin's stated reason for leaving school was untrue. The court excluded these exhibits on the ground that the evidence contained in them was concerned with collateral matters. Although the application documents had been admitted as exhibits, and Donlin had been allowed to testify as to his reason for leaving school, this evidence had not been shown to have been relevant to the issues, nor was its relevancy explained in the plaintiff's brief. Certainly, it had not been shown to have been in anyway relevant to the issue of whether Donlin had been negligent, as alleged in the first count, in shooting and killing the decedent. A statutory examination of an adverse party may amount to a cross-examination. Mendez v. Dorman, supra. In an attack on his credit, inquiry may be made, in the discretion of the court, as to particular acts of misconduct tending to show a lack of veracity, even though such evidence might be irrelevant to the issues in the case. Vogel v. Sylvester, 148 Conn. 666, 675, 174 A.2d 122; Shailer v. Bullock, 78 Conn. 65, 69, 61 A. 65; McCormick, Evidence § 42. But the exhibits were properly excluded, since, as is explained in Shailer v. Bullock, supra, extrinsic evidence as to particular acts of misconduct is inadmissible. 3 Wigmore, Evidence (3d Ed.) §§ 981, 987 p. 617. And insofar as this extrinsic evidence tended to contradict Donlin's testimony and the answers in the application documents, it was properly excluded, for a 'witness may not be contradicted as to any answer he may have made in respect to an irrelevant fact'. Barlow Bros. Co. v. Parsons, supra, 73 Conn. 702, 49 A. 208; Johnson v. Charles William Palomba Co., 114 Conn. 108, 115, 157 A. 902, 80 A.L.R. 441; 3 Wigmore, op. cit. § 1003. The exhibits sought to be admitted indicated that Donlin left school, not because he wanted to join the armed forces, but to escape the adverse effects of acts of misconduct committed when he was a youth. This evidence was documentary and, therefore, extrinsic. Insofar as it was offered to indicate a lack of veracity, it was properly excluded under the rule of cases such as Shailer v. Bullock, supra. Insofar as it was offered as inconsistent with Donlin's testimony as to his reason for leaving school, it was properly excluded under the rule of cases such as Barlow Bros. Co. v. Parsons, supra.

We turn now to certain claimed errors in the charge which are pursued in the brief. These claims of error are to be tested by the claims of proof in the finding with the few corrections to which the plaintiff has shown herself to be entitled. Practice Book, 1963, § 609. Donlin's right to arrest the decedent, since no warrant had been issued, was governed by General Statutes § 6-49, quoted in part in the footnote. 2 State v. DelVecchio, 149 Conn. 567, 574, 182 A.2d 402.

Under Donlin's claims of proof, he had not seen the decedent committing a felony or received speedy information to that effect. But under our statute, he could still make a lawful arrest without a warrant if he had 'reasonable grounds to believe [that the decedent] has committed or is committing a felony'. This statute states the common-law rule. See Sims v. Smith, 115 Conn. 279, 281, 161 A. 239; State v. Carroll, 131 Conn. 224, 226, 38 A.2d 798. It is true that the only crimes which he had actually seen the decedent commit, and consequently the only crimes which he actually and positively knew the decedent had committed, were motor vehicle violations, including the operation of a new and relatively expensive Pontiac convertible at an excessive rate of speed, and recklessly, in a thickly settled section of the city of Hartford, and passing other...

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