G & R Tire Distributors, Inc. v. Allstate Ins. Co.

• Court: Supreme Court of Connecticut
• Citation: 177 Conn. 58,411 A.2d 31
• Decision Date: 13 March 1979
• Parties: G & R TIRE DISTRIBUTORS, INC. v. ALLSTATE INSURANCE COMPANY et al.

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411 A.2d 31 177 Conn. 58 G & R TIRE DISTRIBUTORS, INC.
v.
ALLSTATE INSURANCE COMPANY et al. Supreme Court of Connecticut. Argued Jan. 4, 1979.
Decided March 13, 1979.

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[177 Conn. 59] Sidney Axelrod, Groton, with whom, on the brief, was Peter S. Gianacoplos, Groton, for appellant (plaintiff).

Snow Gene Munford, Hartford, for appellees (defendants).

Before [177 Conn. 58] LOISELLE, BOGDANSKI, LONGO, PETERS and PARSKEY, JJ.

[177 Conn. 59] PETERS, Associate Justice.

The plaintiff, G & R Tire Distributors, Inc., operated a tire recapping business in a barn in Stafford Springs, Connecticut. On August 4, 1972, the building and its contents were totally destroyed by fire, the damage apparently resulting from a furnace explosion. At the time of the fire, there was in effect a "Boiler and Machinery Policy" covering the premises, issued by the defendant Allstate Insurance Company through its agent, the defendant Charles M. Sullivan, Jr.

Despite a timely request, Allstate refused to pay for any of the loss occasioned by the explosion and fire. The plaintiff then instituted the present suit in two counts. The first count, against Allstate alone, alleged

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that the loss was covered by the boiler and machinery policy. Allstate denied any responsibility under the policy, claiming that a furnace explosion did not constitute an "accident" under the terms of the policy because the letters "FE" did not appear on the policy schedule as a designated covered hazard. Even if a covered "accident" had occurred, policy language excluding fire-related losses would preclude recovery. The second count, against both Allstate and the defendant Sullivan, Allstate's authorized agent, alleged misrepresentation that the policy would protect the plaintiff in the event of fire resulting from a furnace explosion.

After a trial to a jury, a verdict was returned in favor of both defendants. The plaintiff's motion to set aside the verdict was denied and the plaintiff [177 Conn. 60] has appealed, claiming error in four respects: (1) the court's refusal to permit one witness to testify concerning prior inconsistent statements of another witness; (2) the court's failure to charge the jury as to the meaning of the term "mistake not due to negligence"; (3) the court's charge to the jury on the second count that a verdict for the defendant Sullivan required a verdict for the defendant Allstate; and (4) the court's charge on the interpretation of the policy relating to the coverage of furnace explosions. These claims will be considered separately.

In a statement signed four months after the fire, an employee of the plaintiff, Charles Busse, stated that on the day of the fire he heard a blast and saw the boiler in flames. During the trial, Busse was called as a defense witness and testified that the fire had started in the grinding room, and not in the boiler room where the furnace was located, thus contradicting his prior written statement. The issue of the exact origin of the fire was contested, and the discrepancy was therefore material. In the presence of the jury, Busse admitted that his signed statement contradicted his trial testimony, and that both could not possibly be true. The plaintiff's attorney subsequently attempted to question a fire marshal, who had been present at the scene of the fire, concerning statements made to him on that day by Busse relating to the original location and cause of the fire. The court refused to allow the testimony, although offered solely for the purpose of establishing a prior inconsistent statement by Busse. The plaintiff claims error in that refusal.

It is an elementary rule of evidence that the credibility of a witness may be attacked by showing a [177 Conn. 61] materially inconsistent prior statement. State v. Addazio, 169 Conn. 416, 425-26, 363 A.2d 153 (1975); State v. Crane, 169 Conn. 242, 245, 362 A.2d 843 (1975); see McCormick, Evidence (2d Ed. 1972) §§ 28, 34-38. Although generally a foundation should be laid before introducing evidence of a prior inconsistent statement; McCormick, op. cit. § 37; "(i)n this state, we have no inflexible rule regarding the necessity of calling the attention of a witness . . . to his alleged prior inconsistent statements before either questioning him on the subject or introducing extrinsic evidence tending to impeach him." State v. Saia, 172 Conn. 37, 46, 372 A.2d 144, 149 (1976). Where, as here, however, the witness' attention was called to his prior inconsistent statement, and he admitted making the statement, his credibility had already been called into question and there was no need for further proof of inconsistency. The trial court is vested with liberal discretion as to how such an inquiry should be conducted; State v. Saia, supra; and its determination that additional evidence of inconsistency would be merely cumulative is not error. See Fishman v. Stamford, 159 Conn. 116, 123, 267 A.2d 443, cert. denied, 399 U.S. 905, 90 S.Ct. 2197, 26 L.Ed.2d 560 (1970).

The plaintiff next contends that the court erred in refusing to charge the jury as to the meaning of the term "mistake not due to negligence." In the course of its original instructions to the jury, the court explained that one of the special defenses in the case was that the plaintiff was guilty of contributory negligence for its failure to read and familiarize itself with the terms and coverage

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of the policy. In this connection, the court charged that "(t)he general rule is that where a person of mature years who can read and write signs or...