Danahy v. Cuneo

• Decision Date: 29 June 1943
• Citation: 130 Conn. 213,33 A.2d 132
• Court: Connecticut Supreme Court
• Parties: DANAHY v. CUNEO et al.

130 Conn. 213

33 A.2d 132

DANAHY

v.CUNEO et al.

Supreme Court of Errors of Connecticut.

June 29, 1943.

Appeal from Superior Court, Hartford County; King, Judge.

Action by Robert Danahy against Columbus Cuneo and another to recover damages for personal injuries alleged to have been caused by defendants' negligence, brought to the superior court and tried to the jury. Verdict and judgment for plaintiff, and appeal by named defendant.

Error and new trial ordered.

Charles G. Albom and Joseph M. Brandon, both of New Haven (David E. FitzGerald, Jr., for New Haven, on the brief), for appellant (named defendant).

Morris Tyler, of New Haven, for appellee (plaintiff).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

BROWN, Judge.

In this action for damages for personal injuries sustained by the plaintiff while riding as a passenger in the defendant Columbus Cuneo's automobile driven by the defendant Frank Cuneo, the plaintiff had a verdict against both defendants. The defendant Columbus only has appealed, solely on the ground of claimed errors in the court's charge. The complaint alleged negligence by the defendant Frank in the operation of the car as a family car within the scope of his authority. In answer to an interrogatory, the jury found that at the time of the accident the car was being so operated within the scope of the general authority of the defendant Columbus, herein referred to as the defendant. Frank was the defendant's minor son who with the plaintiff attended the Milford School. The defendant, who lived in Chicago, owned the automobile and permitted Frank to keep it at Milford while he was there at school. In the neighborhood of 9 p. m. on March 2, 1940, Frank was driving the car southerly on the Grassy Hill Road in the town of Orange. He proceeded at high speed and lost control on a curve, and the car collided with two trees at the side of the road, demolishing it and seriously injuring him and the plaintiff, who was a passenger on the rear seat. The principal contested issue as to the defendant's liability was whether Frank was his agent under the family car doctrine. In this connection there were extensive claims of proof concerning the permission given Frank to use the car and the use made of it by him.

The plaintiff also claimed to have proved that three or four days after the accident, at the hospital where he was desperately ill, his mother met the defendant, who had called there to see Frank, whereupon the defendant told her not to spare any expense and that he would take care of everything. The defendant assigns error in the court's charge concerning the effect of this statement as an admission. It charged: ‘Included among the relevant evidence admitted for your consideration are so-called admissions of a party to a suit, that is, a plaintiff or defendant, made out of Court. * * * Such a claimed admission was a statement claimed to have been made by Columbus Cuneo to Mrs. Danahy in the hospital, about his paying all of the expenses in the hospital, and the statement claimed to have been made by Frank Cuneo that his car was proceeding one hundred miles per hour. These are to be considered, if you can find them proved to have been made, only as against the particular defendant claimed to have made them. * * *’ Subsequently, it gave this further instruction, later reiterated: ‘If you should find that the defendant, Columbus Cuneo, stated to Mrs. Danahy in the hospital that he would pay for the medical expenses necessitated by the plaintiff, Robert Danahy's injuries, and that at that time he knew that his car was the one involved in the accident and was then being operated by Frank Cuneo, you may infer from this conduct of the defendant Columbus Cuneo, if, but only if, you find it reasonable so to do, that the defendant, Frank Cuneo, was operating the car as a family car under circumstances making Columbus Cuneo liable for the acts of Frank Cuneo in the operation of the car at the time in question.’

So far as appears from the record, had the defendant interposed timely objection to the admission of this statement in evidence, the court should have excluded it, since whether it was made out of a sense of moral responsibility because his son was operating the car or a desire to compromise or as an admission of liability was mere speculation. Murphy v. Ossola, 124 Conn. 366, 377, 199 A. 648. While there are some decisions to the contrary we are satisfied that this is the correct rule, and it is supported by ample authority. It has been so held of claimed admissions by conduct such as the furnishing of medical treatment to a plaintiff. Winningham v. Travelers Ins. Co., 5 Cir., 93 F.2d 520, 521; Sias v. Consolidated Lighting Co., 73 Vt. 35, 41, 50 A. 554; Barber v. Southern Ry. Co., 193 N.C. 691, 695, 138 S.E. 17. The same is true as to offers or promises to pay for such care or to continue the plaintiff's wages during his disability. Grogan v. Dooley, 211 N.Y. 30, 105 N.E. 135; Smith v. Bailey, 14 App.Div. 283, 43 N.Y.S. 856; Wilson v. Daniels, 250 Mass. 359, 364, 145 N.E. 469; Libbee v. Handy, 163 Wash. 410, 414, 1 P.2d 312; 2 Wigmore, Evidence, 3rd Ed., p. 159, § 283a; and see Martin v....