Avery v. Ginsburg
| Decision Date | 15 December 1917 |
| Citation | 102 A. 589,92 Conn. 208 |
| Parties | AVERY. v. GINSBURG. |
| Court | Connecticut Supreme Court |
Appeal from Court of Common Pleas, Hartford County; Daniel A. Markham, Judge.
Action by Charles H. Avery against Michael Ginsburg. From judgment for plaintiff, defendant appeals. No error.
The plaintiff was driving his horse, hitched to a wagon, over a road in New Britain. The accident occurred when the defendant was behind and following the plaintiff in an automobile over this road. The automobile struck the wagon in the rear, and raised it to such an angle that the plaintiff was violently thrown to the ground.
The parties were at issue as to the cause of the collision and the nature and extent of the plaintiff's injuries. Upon these questions the court below found for the plaintiff, and rendered judgment for him to recover $800 damages and his costs.
The reasons of appeal are 38 in number, the last 34 of which are exceptions to the finding and to the refusal of the judge to incorporate therein certain matters which the defendant claims to have established by the evidence which is before us under section 797 of the General Statutes.
Other claims of the defendant are that: "(1) The plaintiff did not prove his case with the certainty required by law; (2) On the whole case, judgment should have been rendered for the defendant; (3) On the whole case, the defendant, if liable at all, the damages assessed were excessive."
The defendant also contends that by an amendment filed by the plaintiff and allowed by the judge the court of common pleas was ousted of its jurisdiction of the case. The record discloses that in the plaintiff's original complaint he claimed to recover $1,000 damages. By permission of the court the word "trebled" was added by amendment to the ad damnum clause so that it read: "The plaintiff claims $1,000 damages, trebled." The allegations of the complaint as thus amended were denied by the defendant.
George W. Klett and Benjamin W. Ailing, both of New Britain, for appellant.
Arthur W. Upson, of New Britain, for appellee.
RORABACK, J. (after stating the facts as above). The first assignment of error does not comply with the provisions of section 802 of the General Statutes, which require that the precise error claimed shall be specifically stated in the reasons of appeal.
It appears from an examination of the evidence that there was evidence from which the trial court could have fairly found the material and controlling facts set forth in the finding. It can also be said that these facts, so found, are consistent with and that they fully sustain the judgment rendered.
The defendant excepts to the finding of the court because the court below found that:
"The defendant had only owned said automobile a short time previous to said collision, and had been licensed to drive said machine only since July 9, 1915."
The defendant contended that these two facts, a brief ownership and a recent license, were found upon testimony which was afterward excluded as hearsay. The record does not altogether sustain this claim, as there was other testimony, received without objection, tending to show that the defendant had owned the car only a few days at the time of the accident, and that he was then driving it for the second time. The presumption is that the court relied upon this evidence as the basis for its finding, rather than upon that which was excluded as hearsay. However, neither of these facts was important, nor even relevant, strictly speaking. How long an experience the defendant had had with automobiles might be relevant upon the question of his competency as a driver; but how long he had owned this particular car was of little, if any, consequence. He might have owned a dozen cars before this one, and also might have been licensed repeatedly before July 9, 1915. Clearly the defendant was not harmed by this clause of the finding, even if it was not fully justified by the evidence; and its elimination would not change the result. There was abundant evidence in support of the finding that the defendant was not a competent driver at the time of the collision, and that he was then driving the car in a dangerous manner, and therefore the exception to that statement is not sustained.
Several reasons of appeal are urged by the defendant to sustain "his contention that the judgment for damages rendered by the court below was excessive. The trial court found that the defendant violated the law of the road by carelessly colliding with the plaintiff's wagon when he had plenty of room to pass on its left; and because...
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Solomon v. Aberman
...so persuaded. We are entitled to presume that the trial court acted properly and considered all the evidence. See Avery v. Ginsburg, 92 Conn. 208, 211-12, 102 A. 589 (1917); Maltbie, Conn.App.Proc. § 311. There is, of course, no presumption of error. Long v. Loughlin, 171 Conn. 291, 292, 37......
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Peck v. Jacquemin
...will utilize only competent evidence in arriving at its decision and will disregard that which is incompetent. See Avery v. Ginsburg, 92 Conn. 208, 211-12, 102 A. 589 (1917); see Bizzell v. Bizzell, 247 N.C. 590, 605, 101 S.E.2d 668 (1958). Consequently, the matter of an agreement or releas......
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State v. Mogulnicki, CR
...involved in the issue-and on the record it cannot be said that it erred in this respect-it would be a harmless error. Avery v. Ginsburg, 92 Conn. 208, 213, 102 A. 589; 5 Am.Jur.2d, Appeal and Error, § 819. To put it in another way, if it is assumed that the defendant had moved to strike thi......
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Bridgeport Hydraulic Co. v. City of Bridgeport
...and cannot be considered. Hine v. McNerney, 97 Conn. 308, 116 A. 610; Fagerholm v. Nielson, 93 Conn. 380, 387, 106 A. 333; Avery v. Ginsburg, 92 Conn. 208, 102 A. 589. third, sixth, ninth, twentieth, twenty-first, and twenty-fourth reasons of appeal relate to questions of fact which were fo......