Furcolo v. Auto Rental Co., Inc.

• Court: Connecticut Supreme Court
• Writing for the Court: BANKS, J.
• Citation: Furcolo v. Auto Rental Co., Inc., 148 A. 377, 110 Conn. 540 (Conn. 1930)
• Decision Date: 15 January 1930
• Parties: FURCOLO v. AUTO RENTAL CO., INC.

148 A. 377

110 Conn. 540

FURCOLO v. AUTO RENTAL CO., INC.

Supreme Court of Errors of Connecticut.

January 15, 1930

Appeal from Superior Court, New Haven County; L. P. Waldo Marvin Judge.

Action by Lorenzo Furcolo, administrator, against the Auto Rental Company, Inc., to recover damages for the death of the plaintiff's intestate alleged to have been caused by the heedlessness and recklessness of the driver of an automobile to whom it had been leased by the defendant, brought to the superior court and tried to a jury. Verdict and judgment for defendant, and plaintiff appeals. No error.

Charles S. Hamilton and Edward S. Snyder, both of New Haven, for appellant.

Samuel E. Hoyt and George J. Grady, both of New Haven, for appellee.

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

BANKS J.

The complaint alleged that the defendant rented an automobile to one Augustine, who invited plaintiff's intestate to ride in it as his guest, and that the latter, while such guest was killed as a result of the heedless and reckless operation of the car by Augustine. The action was brought under the statute (Pub. Acts of 1925, c. 195, § 21) which made any person who leased a motor vehicle to another responsible for damage to persons or property caused by the operation of the motor vehicle while so leased, which we have construed as imposing liability only in case of the tortious operation of the rented car (Levy v. Daniels' U-Drive Auto Renting Co., 108 Conn. 333, 143 A. 163, 61 A.L.R. 846) and which has since been amended, so as to limit the liability to such as would have been incurred by the operator if he had also been the owner (Public Acts of 1929, c. 256). It is conceded by the defendant that the car at the time of the accident was being operated recklessly, but it claimed that the car was then being operated, not by Augustine, but by plaintiff's intestate.

Plaintiff appeals from the denial of his motion to set aside the verdict in favor of the defendant. He claims that there was no credible evidence in support of the defendant's contention that the car at the time of the accident was being operated by Furcolo. Both Furcolo and Augustine were so severely injured in the accident that they died a few days thereafter. The father and mother of the Furcolo boy testified that they visited him while he was in the hospital, and that he told them that Augustine was driving the car at the time of the accident. Augustine's mother testified that she went to the hospital to visit her son, and at that time talked with Furcolo, and that he told her that he was driving the car at the time of the accident. The plaintiff contends that this evidence of Mrs. Augustine cannot be considered as evidence of the fact that Furcolo was driving the car, but was admissible simply in contradiction of the testimony of the father and mother of the Furcolo boy as to what their son had told them. He relies upon the rule that contradictory or inconsistent statements made by a witness out of court are admitted solely for the purpose of impeaching his credibility, but in themselves have no probative value. Branford Trust Co. v. Prudential Ins. Co., 102 Conn. 481, 129 A. 379, 42 A.L.R. 1450. The situation was not one which called for the application of that rule. What the Furcolo boy said to any one about the accident out of court was hearsay, and not admissible in evidence, except as the statute makes it so. General Statutes, § 5735. If the jury believed the evidence of Mr. and Mrs. Furcolo as to what their son told them, the situation was the same, under the statute, as though he had so testified in court. The same is true as to the testimony of Mrs. Augustine with regard to what he told her. Her evidence was not offered to impeach the evidence of any witness in the case, but was evidence which the statute makes admissible in proof of the fact or facts stated to her by Furcolo, We have thus a situation where there was conflicting evidence as to who was driving the car at the time of the accident. The jury might reasonably have credited the evidence that Furcolo was the driver, in which case, of course, the administrator of his estate could not recover. The court did not err in refusing to set the verdict aside.

In his additional appeal the plaintiff predicates error upon the refusal of the court to charge the jury as requested by him and upon the charge as given. The evidence establishes beyond question that the car was being operated at the time of the accident...