Hayes v. Morris & Co.

• Decision Date: 01 March 1923
• Parties: HAYES v. MORRIS & CO.
• Court: Connecticut Supreme Court

119 A. 901

98 Conn. 603

HAYES v. MORRIS & CO.

Supreme Court of Errors of Connecticut.

March 1, 1923

Appeal from Superior Court, New Haven County; Frank D. Haines Judge.

Action by Henry V. Hayes against Morris & Co. to recover damages for the alleged negligence of a servant of the defendant. Judgment for the plaintiff for $1,355.24, and appeal by defendant. No error.

William E. Thoms and James W. Carroll, both of Waterbury, for appellant.

Edward B. Reiley and Thomas F. McGrath, both of Waterbury, for appellee.

CURTIS, J.

It appears from the finding that on January 17, 1921, the plaintiff was a police officer of Waterbury and doing traffic duty at the intersection of two streets one running north and south and the other east and west, and at 2 o'clock in the afternoon was operating a mechanical signal directing traffic. A servant of the defendant was then driving a horse and wagon of the defendant at a walk in the easterly direction, approaching the intersection signal and the officer.

When the horse of defendant's servant was about 10 feet from the officer, he turned the signal, as was customary, for north and south traffic to start, but giving ample time for the defendant's servant and east-bound traffic to move to the east past the signal and the intersection. The officer when he turned the signal turned his body so as to face the north and south traffic. As the officer so turned the servant without warning suddenly struck the horse with the reins causing the horse to jump, rear, slip, and fall upon the officer. The blow given the horse was unnecessary and reckless, and was not the act of a reasonably prudent driver under the circumstances.

The officer was without contributory negligence, and suffered severe personal injuries because of the negligent driving of the servant. At the time of the injury the plaintiff was receiving for his services as officer $36.75 per week. The following are paragraphs from the finding:

" (12) Immediately upon the officer's turning as aforesaid, Cupsky [the driver] suddenly and without any warning struck the horse with the reins, as a result of which sudden action the horse jumped, reared, slipped, and fell upon the plaintiff."

" (18) Though the plaintiff under the terms of his employment as police officer was not entitled to pay for the period of unemployment for 48 days, the board of safety of the city of Waterbury, by a special vote, gave the plaintiff a sum of money equal to what would have been his pay for that period. (19) The court in assessing damages to the plaintiff allowed him the amount of his salary for the full period of 48 days of his incapacity, being $252."

The defendant moved that the trial court strike paragraph 12 from the finding, as a material fact found without evidence. Practice Book 1908, p. 268, § 10 (3). The driver testified that he did not strike or touch the horse as he approached the signal and the officer. An eyewitness testified that the driver struck the horse with the reins as he approached the officer, and he illustrated how he held the reins, and stated the results of his act upon the horse and officer. We are satisfied that this testimony and necessary inferences from the results of the driver's acts justify the finding of paragraph 12.

The fact that the court stated in its memorandum that the slapping of a horse with the reins to hurry it was an action that common knowledge or observation of the actions of drivers of slow horses made probable has no bearing upon the question whether the way the horse was slapped was unnecessary, negligent, and reckless as found, but relates merely to the probability of the truth of the testimony of the eyewitness.

Paragraph 18 of the finding was justified under the relevant evidence certified. If, however, the change in the finding requested in this matter were granted, it would not affect the result. The motions to correct the finding cannot therefore be granted.

The defendant claims that the plaintiff should not have been allowed to recover an amount equal to his salary for the 48 days he was unable to work, because, in substance, the city of Waterbury continued his pay. The plaintiff alleged in his complaint that as a result of his injury " he was prevented for a long time from following his regular occupation as a policeman." That is an allegation of damages for time lost or loss of earning capacity in consequence of his injury. It is immaterial that he also alleged the amount of his customary pay. Under our law the recovery of damages for loss of earning capacity or time lost is not merely a recovery of wages lost.

In Comstock v. Conn. Ry. & Lt. Co., 77 Conn. 68, 58 A. 466, we held:

" If the injury directly impairs the earning capacity of the [plaintiff], he can recover in an action of tort under proper pleadings, the amount of his loss from such impairment. *** There are two modes of proving what is a man's earning capacity. His general qualities and his qualifications for any particular business in which he may be engaged may be described by those who know him, and under some circumstances they can give their opinion as to what sum represents the pecuniary value of his earning capacity for a certain period of time. *** The other mode is to show what his earnings in fact were during a certain period. If he was employed by

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