Fairbanks v. State

Decision Date24 July 1956
Citation124 A.2d 893,143 Conn. 653
CourtConnecticut Supreme Court
PartiesEdith S. FAIRBANKS, Administratrix v. STATE of Connecticut et al. In re ESTATE of Betty L. BALDWIN. Supreme Court of Errors of Connecticut

Allyn L. Brown, Jr., Norwich, with whom, on the brief, was Robert M. Sussler, Norwich, for appellant (defendant Baldwin).

J. Rodney Smith, New London, with whom was John C. Dennis, New London, for appellants (named defendant and others).

Milton L. Jacobson, Norwich, with whom, on the brief, were George Gilman and Vincent A. Laudone, Norwich, for appellee (plaintiff).

Before BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ., and COMLEY, Superior Court Judge.

COMLEY, Superior Court Judge.

The plaintiff, administratrix of the estate of Betty L. Baldwin, brought this action to recover damages for the death of her decedent which resulted from injuries sustained by her while riding as a passenger in a car operated by her husband, the defendant Wallace R. Baldwin, Jr. About 11 p. m. on July 30, 1954, at the intersection of routes 87 and 207 in the town of Lebanon, the Baldwin car collided with a car driven by the defendant Arthur R. Harvey and owned by the state police department, in which Harvey was employed as a police officer. At the time of the accident, he was answering an emergency call in the line of duty. The state of Connecticut was made a party by virtue of General Statutes, § 8297.

The jury returned a verdict for $75,000 against all three defendants, and the trial court refused to set it aside. The defendant Baldwin has appealed, assigning as error the failure of the court to charge as requested, the exclusion of certain evidence, and the denial of the motion to set aside the verdict as excessive. The state and Officer Harvey have appealed on the sole ground that the verdict is excessive.

In connection with his claim that the court erred in refusing to charge as requested, the defendant Baldwin asks that certain paragraphs of the finding be corrected. It has recently been pointed out that in a jury case '[i]t serves no useful purpose to seek corrections in the finding which would not make clearer the situation as related to the claimed errors.' Trani v. Anchor Hocking Glass Corporation, 142 Conn. 541, 543, 116 A.2d 167, 168; Voronelis v. White Line Bus Corporation, 123 Conn. 25, 27, 192 A. 265. Corrections will not be made 'merely to secure a meticulous accuracy as to details.' Delfino v. Warners Motor Express, 142 Conn. 301, 302, 114 A.2d 205, 207. The changes sought in the present case are denied.

The defendant Baldwin requested the court to charge as follows: 'If you the jury find both, defendant Harvey and defendant Baldwin, negligent then in order to establish liability of both defendant[s] you must find that the negligence of each was the substantial factor in causing the collision and continued to be [until] the point of impact. If the negligence of either defendant is questioned by you the jury as becoming a trivial consequence a mere incident of the operating cause although it may be in a sense a factor, the law holds it so insignificant that it cannot be considered a cause and that defendant is no longer to be held liable.' The trial court charged the jury at length upon the subject of proximate cause, adopting the familiar 'substantial factor' test as set forth in Mahoney v. Beatman, 110 Conn. 184, 195, 147 A. 762, 66 A.L.R. 1121, and emphasizing that 'to be a substantial factor, the negligence must have continued down to the moment of the injury or at least down to the setting in motion of the final active injurious force, which materially produced or preceded the injuries.' This was a sufficient compliance with the request to charge, in view of the fact that the proof offered by all the parties, including the defendant Baldwin, disclosed a collision between two vehicles within an intersection into which each operator had driven without any substantial alteration in his course or speed. It was a typical case of concurrent negligence continuing without interruption down to the time of the accident and did not involve any act of superseding or intervening negligence such as existed in the cases of Kinderavich v. Palmer, 127 Conn. 85, 15 A.2d 83, and Corey v. Phillips, 126 Conn. 246, 10 A.2d 370, where a charge such as the one requested was held to be essential.

The ruling on evidence which is assigned as error by the defendant Baldwin arose out of his attempt to show bias or prejudice on the part of a state police officer named Powers who investigated the accident on the night of its occurrence and testified as a witness for the plaintiff. Later in the trial, the plaintiff called a witness named Zelinsky who was at the scene of the accident and overheard a conversation between Powers and the defendant Harvey. Upon cross-examination by Baldwin's counsel, Zelinsky was permitted to testify to the statements made by Harvey in this conversation but not to those made by Powers. Baldwin's counsel then stated that he had expected to show by this excluded testimony that Powers had said to Harvey that the latter 'should not be sorry' about the accident and that he, Powers, 'would see that everything turned out all right.'

The bias and prejudice of a witness may be shown, either by cross-examination or by the testimony of other witnesses. Fordiani's Petition for Naturalization, 99 Conn. 551, 560, 561, 121 A. 796; Beardsley v. Wildman, 41 Conn. 515, 517. It is, however, the rule in many jurisdictions that if the bias or prejudice of a witness is to be shown by statements made out of court to, or in the presence of, another witness, a foundation must first be laid by asking the first witness, on cross-examination, whether or not he made such statements. 3 Wigmore, Evidence (3d Ed.) §§ 953, 1028; 58 Am.Jur. 385, § 714; note, 16 A.L.R. 984. This rule has not been applied in this state with inflexible rigidity, as it has in many jurisdictions. From early times it has been consistently held that it rests within the judicial discretion of the trial court whether or not to admit the impeaching statements where no foundation has been laid. Hedge v. Clapp, 22 Conn. 262, 269; McGinnis v. Grant, 42 Conn. 77, 79; Tomlinson v. Town of Derby, 43 Conn. 562, 565; Adams v. Herald Publishing Co., 82 Conn. 448, 452, 74 A. 755; Marshall v. Fenton, 107 Conn. 728, 733, 142 A. 403. It cannot be said that the court abused its discretion in excluding the statements offered to show bias or prejudice on the part of Powers.

The defendant Baldwin also claims that since the state is a party defendant and since Officer Powers was the agent of the state in making the investigation of the accident, his statement to Harvey in the presence of Zelinsky should have been admitted against the state as an admission by its agent acting within the scope of his authority. This claim cannot be sustained. Powers, it is true, was the agent of the state for the purpose of making the investigation, but not for the purpose of making the statements attributed to him. They were not within his express or implied authority. Wade v. Yale University, 129 Conn. 615, 618, 30 A.2d 545; Ezzo v. Geremiah, 107 Conn. 670, 680, 142 A. 461; Morse v. Consolidated R. Co., 81 Conn. 395, 399, 71 A. 553.

The remaining assignment of error, pressed by all the defendants, is that the verdict for $75,000 is so excessive that the court erred in refusing to set it aside. This is an action for wrongful death brought under the provisions of § 3230d of the 1955 Cumulative Supplement, which was in force at the time of the accident. That statute provides for the recovery of 'just damages,' with no maximum limit. In Chase v. Fitzgerald, 132 Conn. 461, 45 A.2d 789, 163 A.L.R. 247, this court reviewed the subject and, with some modification and revision of the rulings made in earlier cases, restated and redefined the several components which may properly...

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