Finch v. Weiner

• Decision Date: 02 March 1929
• Parties: FINCH v. WEINER.
• Court: Connecticut Supreme Court

145 A. 31

109 Conn. 616

FINCH v. WEINER.

Supreme Court of Errors of Connecticut.

March 2, 1929

Appeal from City Court of Meriden; Alfred B. Aubrey, Deputy Judge.

Action by Lewis T. Finch against Phillip Weiner to recover damages for personal injuries alleged to have been caused by the negligence of the defendant's servant, brought to the City Court of Meriden and tried to the jury. Verdict and judgment for the defendant, from which the plaintiff appealed. Error, and new trial ordered.

Lewis J. Somers, of Meriden, for appellant.

Cornelius J. Danaher, of Meriden, and David R. Woodhouse, of Hartford, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

HINMAN, J.

The plaintiff claimed, and offered evidence tending to prove that a collision between a truck owned by the defendant and operated by his employé, one Skinner, and a sedan owned by one Hoskings, in which the plaintiff was riding as a guest, was caused by negligent operation of the truck, and that the plaintiff was injured thereby. At the beginning of the presentation of evidence by the plaintiff, Skinner was called as a witness and was inquired of, only, as to whether, at the time of the collision, he was in the employ of the defendant and engaged in his business, and to identify an accident report made by the witness to the state commissioner of motor vehicles. Thereupon counsel for the defendant, notwithstanding objection that it was not admissible cross-examination, was permitted to elicit from the witness his version of the details of the collision and the events preceding and following it, none of which had been touched upon in the direct examination.

After the plaintiff had rested his case, the defendant recalled the same witness, who again testified, with greater particularity, to the same matters which he had related in his previous testimony. The plaintiff's objection, that the witness had already, under the guise of cross-examination, been fully examined as to the subject-matter, was overruled.

These rulings are made grounds of appeal. The record indicates that the trial court, in overruling the objection to the proposed line of " cross-examination," regarded the question presented as one of order of proof, only, as to which a liberal discretion is vested in the trial court. The exercise of such discretion ordinarily cannot be reviewed on appeal. Hurlburt v. Bussemey, 101 Conn. 406, 416, 126 A 273; 6 Jones, Commentaries on Evidence, chap. 29, p. 4950 et seq. However, the purpose of allowing discretionary variations from the logical order of proof relates largely to convenience or accommodation in forwarding the trial, usually to avoid the necessity of detaining or recalling a witness, or some similar consideration; but the discretion must be exercised with due regard to the substantial rights involved and in accord with that which is just and proper under the circumstances. Departure from the regular order should not be permitted where it will work injustice to either party. 6 Jones, Commentaries on Evidence, § 2511. The practical effect of the ruling complained of tended to give the defendant the distinct advantage of placing before the jury, at the outset of the trial, a version of the circumstances favorable to his contentions, proceeding from a witness called and in a sense vouched for by the plaintiff, and in sharp contradiction to the testimony of other witnesses called by the plaintiff, as to those facts and circumstances. A further natural and probable effect of such a course of procedure would be to create confusion in the minds of the jury and to weaken the effect of the plaintiff's evidence. Considered simply as a matter of order of proof, it would seem that the evidence in question might have been admitted at that stage of the case without undue prejudice, only upon the defendant expressly making the witness his own for the purposes of the new line of inquiry, with a clear explanation in the charge of the effect thereof, neither of which conditions occur in the present case. Even with these...