Cascella v. Jay James Camera Shop

Decision Date28 April 1960
Citation160 A.2d 899,147 Conn. 337
CourtConnecticut Supreme Court
PartiesRaiph CASCELLA v. JAY JAMES CAMERA SHOP, INC., et al. Charles MINOTTI (Joan M. Aube, Administratrix, Substituted Piaintiff), et al. v. JAY JAMES CAMERA SHOP, INC., et al. Supreme Court of Errors of Connecticut

J. Warren Upson, Waterbury, with whom was John H. Cassidy, Jr., Watertown, for appellants (defendants Merrill and Murray) in each case.

Samuel C. Derman, Bridgeport, for appellees (plaintiffs) in the second case.

Kenneth J. Zarrilli, Bridgeport, with whom, on the brief, were Edward J. Lang, Burton J. Jacobson and Alfred A. D'Amore, Bridgeport, for appellee (plaintiff) in the first case.

Before BALDWIN, C. J., and KING, MURPHY, MELLITZ and SHEA, JJ.

SHEA, Associate Justice.

These two cases were tried together and the appeals to this court were combined. Practice Book, § 382. The actions arose out of an automobile accident on Cotober 23, 1953, at the intersection of Main and Vangard Streets in Bridgeport. Four vehicles were involved. A truck owned by the defendant George F. Murray, Jr., and operated by his agent, the defendant James F. Merrill, crashed into the rear of a station wagon owned by the defendant Jay James Camera Shop, Inc., and operated by its agent, the defendant Howard S. Bader. The force of the blow drove the station wagon into the rear of a car owned and operated by Ralph Cascella, the plaintiff in the first case, causing it, in turn, to strike the rear of a car owned and operated by Charles Minotti, the plaintiff in the second case, in which the plaintiff Alan Perry was a passenger. Minotti and Perry sued the owners and drivers of the other vehicles involved in the collision. Before the trial, Minotti died from causes unconnected with the accident and Joan M. Aube, administratrix of his estate, was substituted as party plaintiff. In the Minotti case, the court granted a motion for nonsuit as to the defendants Ralph and Louise Cascella. Ralph Cascella, as plaintiff, instituted an action against Jay James Camera Shop, Inc., and its driver, Bader; Murray, the truck owner; and Merrill, the truck driver. In both the Cascella and the Minotti actions, the court directed verdicts in favor of Jay James Camera Shop, Inc., and Bader. The jury rendered a verdict for each plaintiff against the other defendants, Murray and Merrill. They appealed from the judgments, assigning as error certain rulings on evidence, the failure of the court to limit counsel in argument before the jury, and the charge to the jury. The defendant Merrill assigned as error the denial of a motion by his counsel for permission to withdraw from the cases.

When the trial of these cases began, counsel for the defendants Merrill and Murray, hereinafter called the defendants, informed the court that he had been unable to locate Merrill. On the second day of the trial, counsel notified the court that he had reached Merrill in Massachusetts by telephone and had requested him to appear in court. Selection of the jury was completed that day. When Merrill failed to appear, counsel orally moved for permission to withdraw as his attorney. The court denied the motion. Counsel was provided for the defendants by contract with Murray's insurer, Merrill being protected under the policy as the operator of the truck owned by Murray. Counsel claimed that Merrill had violated the contract of insurance by failing to co-operate with the insurer and that, therefore, counsel should be permitted to withdraw from Merrill's defense.

The right of an attorney to withdraw from employment, once assumed, arises only from good cause. Canons of Professional Ethics, No. 44. 'No attorney shall withdraw his appearance * * * without the leave of the court. No application for such withdrawal shall be granted until the court is satisfied that reasonable notice has been given to the party * * * represented by the attorney * * *.' Practice Book, § 49. The right of counsel to withdraw from any case is a matter which rests within the sound discretion of the court, and this is particularly so where permission is sought during the course of the trial and in the absence of formal notice to the client. Linn v. Superior Court, 79 Cal.App. 721, 725, 250 P. 880; Spector v. Greenstein, 85 Pa.Super. 177, 179. Any question concerning coverage under the contract of insurance was foreign to the issues presented in this case and could not be determined upon the motion of counsel to withdraw. The court did not err in denying the motion.

During the trial, the court, over the objection of counsel on behalf of the defendant Murray, permitted the plaintiff Perry to relate a conversation between him, Minotti and Merrill at the scene of the accident some time after it occurred. At another time, a police officer testified about conversations with all the car operators in the absence of Murray. The latter's attorney objected to the testimony concerning these conversations on the ground that Merrill had no authority to make admissions binding on Murray, that no evidence had been offered to show that the statements made by the operators, including Merrill, were spontaneous utterances, and that the conversations were hearsay. The court overruled the objections and permitted Perry to testify that Merrill had stated that he was going forty-five miles per hour before the accident and that he put on his brakes and nothing happened. The officer testified as to what each driver had told him about the accident and that Merrill had said that he did not see the vehicle stopped in front of him, that he tried to swing out, but that he still made contact with it.

The declarations of an agent as to how an accident happened, made some time after it occurred, are mere recitals of a past event and are inadmissible in evidence against his principal. As to the latter, such declarations are objectionable as hearsay. Morse v. Consolidated Ry. Co., 81 Conn. 395, 399, 71 A. 553. Nor was Merrill the agent of Murray for the purpose of making admissions which were binding on the latter. Graham v. Wilkins, 145 Conn. 34, 41, 138 A.2d 705; Fairbanks v. State, 143 Conn. 653, 658, 124 A.2d 893; Wade v. Yale University, 129 Conn. 615, 618, 30 A.2d 545. Likewise, the evidence was inadmissible as spontaneous utterances. The factors to be considered in determining whether certain statements or declarations fall within this exception to the...

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47 cases
  • State v. Day
    • United States
    • Connecticut Supreme Court
    • June 27, 1995
    ...under such circumstances as to indicate absence of opportunity for contrivance and misrepresentation." Cascella v. Jay James Camera Shop, Inc., 147 Conn. 337, 342, 160 A.2d 899 (1960). A "mere [recital] of a past event"; id., 341; or "the narrative of a past event" is inadmissible under thi......
  • Shelnitz v. Greenberg
    • United States
    • Connecticut Supreme Court
    • May 27, 1986
    ...our implicit overruling in Queen v. Gagliola, 162 Conn. 164, 169, 292 A.2d 890 (1972), of "such cases as Cascella v. Jay James Camera Shop, Inc., 147 Conn. 337, 343, 160 A.2d 899 [1960], which placed the burden of proof of nonavailability on the party who would naturally have produced the w......
  • State v. Vitale
    • United States
    • Connecticut Supreme Court
    • May 31, 1983
    ...except to improper argument promptly constitutes a waiver of the right to press such a claim of error. Cascella v. Jay James Camera Shop, Inc., 147 Conn. 337, 343, 160 A.2d 899 (1960). The absence of any objection whatsoever to the closing arguments in this case strongly suggests either tha......
  • Bartholomew v. Schweizer
    • United States
    • Connecticut Supreme Court
    • March 12, 1991
    ...at 529-30, 551 A.2d 1249, quoting Levin v. Ritson, supra, 179 Conn. at 227, 425 A.2d 1279; see also Cascella v. Jay James Camera Shop, Inc., 147 Conn. 337, 342-43, 160 A.2d 899 (1960). We find in § 52-216b no evidence that the legislature intended to abrogate the power of the court to disci......
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