Gorham v. Farmington Motor Inn, Inc.

• Decision Date: 07 July 1970
• Court: Connecticut Supreme Court
• Parties: John GORHAM v. FARMINGTON MOTOR INN, INC.

Page 94

271 A.2d 94

159 Conn. 576

John GORHAM v. FARMINGTON MOTOR INN, INC.

Supreme Court of Connecticut.

July 7, 1970.

William R. Moller, Hartford, with whom, on the brief, was John J. Langenbach, Hartford, for appellant (defendant).

A. Arthur Giddon, Hartford, with whom, on the brief, was John P. McKeon, Hartford, for appellee (plaintiff).

Before ALCORN, C.J., and HOUSE, THIM, RYAN and SHAPIRO, JJ.

THIM, Associate Justice.

On October 19, 1965, the plaintiff attended an awards dinner given by his employer at The Corner House Restaurant in Farmington, which is owned and operated by the defendant. After dinner the plaintiff, together with others, went to the cocktail lounge to have a drink. While there, and in an attempt to locate the men's room, the plaintiff walked through an exit door, fell, and injured his leg. He alleged that the fall was caused by a dangerous condition negligently maintained by the defendant. The case was tried to a jury, which found the issues for the plaintiff as against the defendant and awarded him $70,000 damages. The defendant has appealed to this court from the judgment rendered on the verdict.

We shall first consider the assignments of error directed to the court's rulings upon the admissibility of certain evidence. During the trial Alice G. Curran was called as a witness by the defendant. Mrs. Curran was employed as a waitress at the restaurant at the time of the injury. Over the defendant's objection Mrs. Curran testified on cross-examination that she had observed cocktail glasses at the table where the plaintiff had been sitting. Also over the defendant's objection a written statement signed by Mrs. Curran before trial in the presence of counsel for the defendant was admitted. There is no need to decide the correctness of the court's rulings as to the statement and testimony in question because they were harmless. See Burke v. Fancher, 151 Conn. 640, 643, 201 A.2d 461; 58 Am.Jur., Witnesses, § 672. The defendant admits in its brief that the written statement was not inconsistent with Mrs. Curran's testimony, so no claim can be made that the witness' credibility was unfairly impinged upon. Furthermore, the material contained in the statement, together with the testimony which was objected to, would have been favorable to the defendant if believed by the jury, as it indicated that the plaintiff may have been drinking heavily. The evidence would thus tend to prove the allegations contained in the defendant's special defense as to general contributory negligence. In fact, at the time the rulings were made, the defendant's special defense that the plaintiff was intoxicated at the time of the injury had not yet been withdrawn. It is a settled rule of law that the admission of evidence which favors the appellant cannot be a ground of error. Maltbie, Conn.App.Proc. § 39.

In the only other assignment of error directed to a ruling on evidence, the defendant claims that the court erred in excluding testimony to the effect that, pursuant to the provisions of the plaintiff's employment contract, his medical expenses and wages were paid in full despite the time he lost from work, and thus the extent of his damages tended to be lessened. This claim amounts to an attack on what has been termed the collateral source rule, which provides that benefits received by a plaintiff from a source wholly collateral to and independent of the tort-feasor will not diminish the damages otherwise recoverable. 22 Am.Jur.2d, Damages, § 206. 'Where the plaintiff during the period of his disability receives salary or other compensation from his employer, the rule followed or approved in most jurisdictions is that the person whose negligence caused the injury to (the) plaintiff is not entitled to mitigate or reduce damages in whole or in part by the amount of salary or wages received by (the) plaintiff from his employer during the period of disability, whether the payments were pure gratuities or paid pursuant to a contractual obligation * * *.' Note, 7 A.L.R.3d 516, 519. The majority rule in this county likewise prohibits the tort-feasor from taking advantage of the fact that his victim's medical expenses were paid in whole or in part by hospitalization insurance. 22 Am.Jur.2d, Damages, §§ 207, 210. The collateral source rule, both as to medical payments and loss of earning capacity, has long been in effect in this jurisdiction, as the defendant recognizes. See, eG., Acampora v. Ledewitz, 159 Conn. 377, 384, 269 A.2d 288; Lashin v. Corcoran, 146 Conn. 512, 515, 152 A.2d 639; Carangelo v. Nutmeg Farm, Inc., 115 Conn. 457, 461, 162 A. 4; Johnson v. Charles William Palomba Co., 114 Conn. 108, 114, 157 A. 902; Hayes v. Morris & Co., 98 Conn. 603, 607, 119 A. 901; Roth v. Chatlos, 97 Conn. 282, 287, 116 A. 332. The reason for the rule given by a majority of the jurisdictions which have adopted it is that a 'windfall' ought not to be granted to a defendant. 22 Am.Jur.2d, Damages, § 206. 'If there must be a windfall certainly it is more just that the injured person shall profit therefrom, rather than the wrongdoer shall be relieved of his full responsibility of his wrongdoing.' Grayson v. Williams, 256 F.2d 61, 65 (10th Cir.). We see no reason to accept the defendant's position and overrule the collateral source rule as it has long existed in Connecticut and in a majority of jurisdictions in this country. There is accordingly no error in the court's refusal to admit the evidence in question.

Error has been assigned in the court's failure to charge, as the defendant requested, that any award given the plaintiff is tax-free and not subject to any income tax whatever. The great weight of authority in the United States is committed to the rule that, in an action to recover damages for personal injuries, an instruction such as is now under consideration is improper and, when requested, should be refused. See, e.g., Kawamoto v. Yasutake, 49 Haw. 42, 51, 410 P.2d 976; Hall v. Chicago & N.W. Ry. Co., 5 Ill.2d 135, 152, 125 N.E.2d 77; Spencer v. Martin K. Eby Construction Co.,186 Kan. 345, 350, 350 P.2d 18; Louisville & N.R. Co. v. Mattingly, 318 S.W.2d 844, 848 (Ky.); Briggs v. Chicago Great Western Ry. Co., 248 Minn. 418, 432, 80 N.W.2d 625; Bracy v. Great Northern Ry. Co., 136 Mont. 65, 74, 343 P.2d 848, cert. denied, 361 U.S. 949, 80 S.Ct. 403, 4 L.Ed.2d 381; Hardware Mutual Casualty Co. v. Harry Crow & Son, Inc., 6 Wis.2d 396, 405, 94 N.W.2d 577; note, 63 A.L.R.2d 1393.

The defendant relies heavily on Dempsey v. Thompson, 363 Mo. 339, 251 S.W.2d 42, wherein the Missouri court held it proper to instruct the jury that any award of damages is not subject to federal income tax and that said tax should not be considered in fixing the amount of damages. We do not concur with the holding in the Dempsey case. The majority rule is to the contrary. The injection of the question of income tax liability is likely to give rise to more problems than it would solve. See Spencer v. Martin K. Eby Construction Co., supra, 186 Kan. 350-354, 350 P.2d 18, where the leading cases are collected and considered. Rejecting the rule in the Dempsey case, the Illinois Supreme Court in Hall v. Chicago & N.W. Ry. Co., supra, 5 Ill.2d 151, 125 N.E.2d 86, said: 'It is a general principle of law that in the trial of a lawsuit the status of the parties is immaterial. Thus, what the plaintiff does with an award, or how the defendant acquires the money with which to pay the award, is of no concern to the court or jury. Similarily (sic), whether the plaintiff has to pay a tax on the award is a matter that concerns only the plaintiff and the government. The tort-feasor has no interest in such question.' The defendant's contention that, if the instruction is not given, the jury are likely to adjust their verdict upward to offset any income tax liability is based on an unjustified assumption that the jury will not confine themselves to the evidence or to the court's charge. 'This is to assume that there will be misconduct on the part of the jury, an assumption in which we cannot indulge.' Missouri-Kansas-Texas R. Co. v. McFerrin, 279 S.W.2d 410, 419 (Tex.Civ.App.), rev'd on other grounds, 156 Tex. 69, 291 S.W.2d 931.

The other case cited in the request to charge for the proposition that any award given to the plaintiff was tax free and not subject to any income tax whatever was Floyd v. Fruit Industries, Inc., 144 Conn. 659, 136 A.2d 918. In Floyd we held that, in computing damages for wrongful death, any saving of income tax liability which can be attributed to a permanent and total cessation of earned income must be considered. Id., 671, 136 A.2d 918. The Floyd case did not hold that the jury should be instructed concerning the federal tax liability of a plaintiff in respect to any award given to him in the verdict to be rendered. Thus...