Banach v. Bohinski

• Decision Date: 12 December 1927
• Citation: 139 A. 688,107 Conn. 156
• Court: Connecticut Supreme Court
• Parties: BANACH ET AL. v. BOHINSKI ET AL.

139 A. 688

107 Conn. 156

BANACH ET AL. v. BOHINSKI ET AL.

Supreme Court of Errors of Connecticut.

December 12, 1927

Appeal from Superior Court, New Haven County; Leonard J. Nickerson Judge.

Action by John Banach and others against John Bohinski and others to recover damages by fire alleged to have been caused by defendant's negligence. From a verdict and judgment for defendants, plaintiffs appeal. No error.

Lewis J. Somers, of Meriden, for appellants.

William L. Hadden, Ellsworth B. Foote, and David E. FitzGerald, all of New Haven, for appellees.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.

HINMAN, J.

The plaintiffs alleged and offered evidence to prove that, through the negligence of the defendants, who were employed by the plaintiffs to remove the old shingles from, and reshingle a portion of, the roof of the plaintiffs' house, the old shingles, after being removed, were ignited and the fire communicated to the house, which was destroyed, together with its contents, as were certain ladders owned by the plaintiffs, and which they claimed the defendants used in gaining access to the roof. The plaintiffs assign as error the refusal of the court to include in the charge an instruction that they were entitled to recover for the conversion of these ladders. The complaint, however, rested upon alleged negligence, no issue of conversion was presented or fairly suggested by the pleadings, and the loss or injury to the ladders as an element of damage for negligence was adequately included in the charge. The plaintiffs have no ground for complaint; they could not allege one cause of action and recover on another. Berman v. Kling, 81 Conn. 403, 71 A. 507.

During the cross-examination of defendant Bohinski, the plaintiffs sought to have identified and to introduce in evidence a deed dated January 14, 1927, from Bohinski to his wife; the offer being made as indicating a consciousness, on the part of this defendant, of liability for damages in this action. In the few civil cases in which such conveyances have been admitted for this purpose, the transfer was made at a time in such close proximity to the occurrence upon which the claim of liability was based that, in view of its character and the surrounding circumstances, an inference that it was prompted by apprehended liability might reasonably be drawn therefrom. Chaufty v. De Vries, 41 R.I. 1, 102 A. 612; Heneky v. Smith, 10 Or. 349, 45 Am.Rep. 143; Harrod v. Bisson, 48 Ind.App. 549, 93 N.E. 1093; Wigmore on Evidence (2d Ed.) § 282, and cases cited. Here the deed was given nine months after the fire in question and the commencement of this action, and its exclusion, because of such remoteness, was within the discretion of the court. State v. Wade, 96 Conn. 238, 248, 113 A. 458. Moreover, neither the deed itself nor other circumstances disclosed by the record afford legitimate inference that it was prompted by an consciousness of liability. It was therefore properly excluded.

For the purpose of affecting the credibility of the defendant Bohinski, the plaintiffs offered two papers purporting to be records of the city court of Meriden, and claimed to show conviction of crime of such a nature as to be admissible for this purpose. The documents were excluded on the ground that because of incompleteness and lack of authentication, they did not constitute admissible records. The alleged...