Batick v. Seymour

• Decision Date: 06 April 1982
• Citation: 443 A.2d 471,186 Conn. 632
• Court: Connecticut Supreme Court
• Parties: Philip BATICK, Jr. v. Edwin O. SEYMOUR, III, et al.

Page 471

443 A.2d 471

186 Conn. 632

Philip BATICK, Jr. v. Edwin O. SEYMOUR, III, et al.

Supreme Court of Connecticut.

Argued Dec. 3, 1981.

Decided April 6, 1982.

Herbert Watstein, Bristol, with whom were Leonard Bieringer, Hartford, and, on the brief, Julius Watstein, Bristol, for appellant (plaintiff).

Terence D. Mariani, Waterbury, for appellees (defendants).

Before PETERS, HEALEY, PARSKEY, ARMENTANO and SHEA, JJ.

SHEA, Associate Justice.

The plaintiff has appealed from a judgment rendered for the defendant in accordance with a jury verdict upon the first count of his complaint, which sounded in nuisance, and from the decision of the court granting summary judgment for the defendants on the second count, which alleged a fraudulent conveyance. ¹

Viewing the evidence most favorably toward sustaining the verdict, the jury may reasonably have found the following facts: The plaintiff was driving north along route 8 in his pick-up truck on the night of May 13, 1972, when he collided with the defendant driver's vehicle which had also been traveling north on route 8. The plaintiff, who alleged that the defendant's Karman Ghia was proceeding with no lights on, did not see it in his path until it was too late. Although he turned to the left hoping to avoid a collision, his truck hit the left rear of the defendant's car and veered to the left side of the highway where it rolled over. The plaintiff sustained severe injuries as a result of the accident and was confined to a wheel chair throughout the trial. The plaintiff had consumed one can of beer and part of another can during the evening of May 13, and a moderate odor of alcohol from him was noticed at the scene of the accident. The lights of the defendant's vehicle were working approximately one hour before the accident and the rear marker light was observed by the investigating officer to be lighted when he came to the accident scene.

I

With respect to the nuisance count, the plaintiff claims error in the court's failure to excuse three jurors for cause, to limit both defendants to the same number of peremptory challenges allowed to him, to comply with several of his requests to charge, and to admit certain evidence as admissions of the defendant.

Because it is dispositive, we shall first consider the ruling which kept from the jury evidence of the defendant's post-collision transfer of real property to his wife. In excepting to the exclusion of this evidence the plaintiff claimed that it was admissible to show the defendant's consciousness of liability. The rule is well established that evidence is admissible that a person after the happening of an accident, or the occurrence of some other event which might render him liable, disposed of his property, on the ground that such evidence tends to show a consciousness of liability and a purpose to evade satisfaction of it. 29 Am.Jur.2d, Evidence § 274, p. 322; see, e.g., Poston v. Gaddis, 372 So.2d 1099, 1102 (Ala.1979); Bush v. Jackson, 191 Colo. 249, 552 P.2d 509 (1976); Portland Gas Light Co. v. Ruud, 242 Mass. 272, 136 N.E. 75 (1922); Cox v. Wright-Hennepin Cooperative Electric Assn., 281 Minn. 228, 161 N.W.2d 294 (1968). ² While it is true "that a transfer of property could be innocently motivated, ... it is the relevancy of the evidence and not its sufficiency which determines its admissibility. According to this test, it does not matter that other inferences may be equally probable. It is for the jury to determine what motivated the transfer." Bush v. Jackson, supra, 552 P.2d at 511; 2 Wigmore, Evidence (3d Ed.) § 282.

"Subsequent conduct may, in many cases, be given in evidence to affect or to show the character of prior acts or intentions." Elwell v. Russell, 71 Conn. 462, 465, 42 A. 862 (1899). Conduct of a litigant which is plainly reprehensible, such as the intimidation of a witness or flight from the scene of an accident, has commonly been admitted to show consciousness of a doubtful cause. Gaul v. Noiva, 155 Conn. 218, 224, 230 A.2d 591 (1967); Kotler v. Lalley, 112 Conn. 86, 88, 151 A. 433 (1930); In re Durant, 80 Conn. 140, 151, 67 A. 497 (1907). In Banach v. Bohinski, 107 Conn. 156, 139 A. 688 (1927), a negligence action, error was claimed in the exclusion of a deed by which the defendant had transferred property to his wife after the accident had occurred in which the plaintiff was injured. This court acknowledged the rule allowing such evidence of consciousness of liability, but held that the court had not abused its discretion because the conveyance was not made until nine months after the accident. "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." Banach v. Bohinski, supra, 158, 139 A. 688.

The collision in the present case happened on May 13, 1972. On August 4, 1972, the defendant driver, for "love and affection," conveyed a one-half interest in real estate to his wife. Since less than three months elapsed between the accident and the conveyance in the present case, remoteness does not provide a sustainable ground for exclusion.

In this case the court, in ruling on the defendant's objection, specifically relied not on the remoteness of the evidence but on its conclusion that the proffered evidence was more prejudicial than probative. That a court has discretion to exclude relevant evidence on this ground is clear. Tait & LaPlante Handbook of Conn.Evid. § 8.1(b); see State v. Paoletto, 181 Conn. 172, 186, 434 A.2d 954 (1980); State v. Marquez, 160 Conn. 47, 51-52, 273 A.2d 689 (1970); Thibodeau v. Connecticut Co., 139 Conn. 9, 14, 89 A.2d 223 (1952); 3 Wigmore, Evidence (3d Ed.) § 792(2). This discretion, however, has often been invoked and discussed in the context of criminal trials where the stakes are higher and prejudice may have the consequence of confinement. State v. Paoletto, supra; State v. Marquez, supra; State v. Holliday, 159 Conn. 169, 173, 268 A.2d 368 (1970). As grounds for excluding the proffered evidence the trial court mentioned that the plaintiff made no claim against the defendant until more than two years after the conveyance and that only a one-half interest in the property had been transferred. Those factors, of course, affected the weight of the evidence but not its admissibility. During the offer of proof heard in the absence of the jury, the defendant testified that he knew at the time of the deed that the plaintiff was paralyzed, his spinal cord having been severed. He also testified that coverage under his automobile liability insurance policy was limited to $25,000 and that he had consulted an attorney about the transfer. The trial court concluded that testimony about insurance coverage and the attorney-client relationship would prejudice the defendant. The plaintiff, however, expressly disclaimed any intention to present the testimony about insurance coverage to the jury. The fact that the defendant had obtained legal advice about the transfer was not included in the offer of proof, but was elicited by counsel for the defendant. Under these circumstances we are not persuaded that the likelihood of prejudice was so great as to warrant a deviation from the general rule admitting evidence of post-accident transfers to show that the defendant did not view his position in the possible forthcoming litigation as entirely impregnable. The evidence was neither so remote nor so prejudicial that its significance upon the issues of the case could not be entrusted to the jury. See annot., 38 A.L.R.3d 996, 998 § 2.

Our conclusion of error relates only to the issue of nuisance as alleged in the complaint and would not ordinarily require a reversal of the judgment for the defendant on the first count, because the general verdict of the jury imports that the special defense raised by the defendant was also decided in his favor. ³ No interrogatories having been requested by the parties or presented in accordance with Practice Book § 312, the verdict signifies that the jury found not only the issues of the complaint but also those of the special defense for the defendant. Colucci v. Pinette, --- Conn. ---, ---, 441 A.2d 574 (43 Conn.L.J., No. 20, pp. 5, 6) (1981); Johnson v. Pagano, --- Conn. ---, ---, 440 A.2d 244 (43 Conn.L.J., No. 2, pp. 6, 7) (1981). In his special defense ⁴ to this action of nuisance the defendant pleaded that the plaintiff's injuries resulted from "his own wilful misconduct in the operation of his automobile because he had been drinking intoxicating liquors, had paid no attention to where he was operating on said highway and caused his automobile to smash with the rear end of the vehicle being driven by the defendant ...." ⁵ Although the defendant has not claimed the benefit of the general verdict rule, it would, nevertheless, be applicable and the verdict may stand wholly on the resolution of the special defense against the plaintiff. Kelly v. Bliss, 160 Conn. 128, 132-33, 273 A.2d 873 (1970).

The plaintiff, however, claims error in the jury instructions upon the special defense because of a reference to it at one point as "contributory negligence" rather than wilful misconduct, a misstatement which he called to the attention of the trial court in excepting to the charge. Contributory negligence is no defense to an absolute nuisance. Sheeler v. Waterbury, 138 Conn. 111, 116, 82 A.2d 359 (1951); DeLahunta v. Waterbury, 134 Conn. 630, 640, 59 A.2d 800 (1948); Beckwith v. Stratford, 129 Conn. 506, 511, 29 A.2d 775 (1942). We are not convinced that this slip was so significant as to affect the outcome of the trial, but in reviewing the evidence we have concluded that it was insufficient to support a finding of wilful...