Cutlip v. Connecticut Motor Vehicles Com'r

• Decision Date: 11 March 1975
• Citation: 168 Conn. 94,357 A.2d 918
• Court: Connecticut Supreme Court
• Parties: James CUTLIP v. CONNECTICUT MOTOR VEHICLES COMMISSIONER.

Page 918

357 A.2d 918

168 Conn. 94

James CUTLIP v. CONNECTICUT MOTOR VEHICLES COMMISSIONER.

Supreme Court of Connecticut.

March 11, 1975.

Peter C. Dorsey, New Haven, for appellant (plaintiff).

John F. Gill, Asst. Atty. Gen., with whom, on the brief, was Robert K. Killian, Atty. Gen., for appellee (defendant).

Before HOUSE, C.J., and LOISELLE, MacDONALD, BOGDANSKI and LONGO, JJ.

LOISELLE, Associate Justice.

The plaintiff is a truck driver licensed by the state of Rhode Island. While operating a trailer truck northerly on route 5 in Berlin, Connecticut on October 30, 1971, he collided with another vehicle. As a result of this collision three persons died.

The defendant, the commissioner of motor vehicles, following a hearing held before a hearing officer of the department of motor vehicles, and as a result of reviewing the evidence therein produced, concluded that the plaintiff, James Cutlip, caused or contributed to death as a result of an accident, through negligence or carelessness, as well as through violation of § 14-222 of the Connecticut General Statutes. As a result, the plaintiff's privilege to operate motor vehicles in Connecticut was suspended for not less than one year. The plaintiff appealed from the commissioner's decision and order to the Court of Common Pleas, where the issues were found for the defendant and the appeal was dismissed. The plaintiff has appealed from that judgment to this court.

The plaintiff claims that he was denied procedural due process because the hearing went forward without his being afforded any reasonable opportunity to obtain counsel once he knew the seriousness of what was involved. The record does not support this claim. The plaintiff was advised of his right to be represented by counsel in a letter of notice of November 28, 1972, which summoned him to the hearing. At the hearing he was asked if he wanted an attorney and was told that he had the right to have one. Further, the plaintiff was asked, 'Would you rather we reassign the hearing and you bring an attorney with you?' His answer to this last inquiry was, 'Sir, the only thing I can tell you is the truth, so what I know so.' Thereafter the hearing officer told him that he could testify or not and that he could ask any questions.

Waiver is the intentional relinquishment of a known right. It is not necessary that a waiver be made in express terms. It may be inferred from the declarations and conduct of the party if it is reasonable to do so. Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 562, 316 A.2d 394; Breen v. Aetna Casualty & Surety Co., 153 Conn. 633, 644, 220 A.2d 254; DiFrancesco v. Zurich General Accident & Liability Ins. Co., 105 Conn. 162, 168, 134 A. 789. The plaintiff elected to proceed with the hearing after having been amply informed that he could have counsel if he so desired. Having waived his opportunity to be represented by counsel, the plaintiff cannot now claim that he was denied that opportunity.

The plaintiff next states that the defendant failed to comply with the Uniform Administrative Procedure Act, General Statutes §§ 4-166-4-189. His first claim is that the hearing notice was inadequate. ¹ This claim is without merit. The hearing notice of November 28, 1972, notified the plaintiff to appear at a hearing pursuant to General Statutes § 14-111(c), at a designated room of the defendant's headquarters at 60 State Street, Wethersfield, and at a designated time. The notice contained a statement of purpose which indicated that the hearing was to determine whether the plaintiff caused or contributed to a fatal accident which occurred in Berlin on October 30, 1971, through his violation of designated statutes or through negligence or carelessness, and that if such were found, suspension for not less than one year would result. The notice complied with statutory requirements.

The plaintiff next cites specific instances in which he claims that the hearing officer admitted improper evidence in violation of General Statutes § 4-178, which provides that '(t)he rules of evidence as applied in non-jury civil cases in the courts of this state shall be followed.' The record reveals that the plaintiff was asked in every instance whether he objected to the offer of evidence, each of which was hearsay in nature, and he specifically stated that he had no objection. Where hearsay evidence is admitted without objection, the trier of facts may give such weight to it as he deems it is worth. Stanley Works v. New Britain Redevelopment Agency,155 Conn. 86, 96, 230 A.2d 9; Pluhowsky v. New Haven, 151 Conn. 337, 343, 197 A.2d 645; Brown v. Rahr, 149 Conn. 743, 182 A.2d 629; Sizer v. Lenney,146 Conn. 457, 151 A.2d 889. The plaintiff claims that he was an inexperienced person before such hearings. As previously stated, however, he was advised that he could be represented by counsel and was specifically told just prior to the hearing that if he wanted counsel the hearing would be postponed. After having made the choice to proceed without counsel, the plaintiff cannot now claim that he was prejudiced by the admission of evidence to which he did not object. State v. Grimes, 154 Conn. 314, 323, 228 A.2d 141.

On June, 2, 1973, the defendant sent to the plaintiff a notice of its final decision, which was not in compliance with then General Statutes § 4-180, in that it did not state separately the findings of fact and conclusions of law. On June 11, 1973, this requirement was eliminated from the notice. Public Act No. 73-620, § 17; see also § 18. An examination of the statute prior to June 11, 1973, ² clearly indicates that this provision was directory only and that failure to comply would not render the defendant's action void. Morningside Assn. v. Planning & Zoning Board,162 Conn. 154, 156, 292 A.2d 893. Further, a notice in compliance with the provisions of the statute prior to June 11, 1973, was sent to the plaintiff on September 13, 1973.

The plaintiff claims that the defendant based his action on matters outside that record and that the action was arbitrary and unsupported by the evidence. The certification of the record filed with the court constitutes the entire record upon which the defendant based his decision and amply supports the decision that the plaintiff was responsible for deaths through negligence and carelessness. The claim that the defendant's action was unsupported by the evidence and that he went outside the certified record is without merit.

The final assingment of error is that § 14-111(c) ³ constitutes a denial of equal protection in violation of both the federal and state constitutions. The...