Kelly v. City of Waterbury

• Decision Date: 22 July 1921
• Citation: 96 Conn. 494,114 A. 530
• Court: Connecticut Supreme Court
• Parties: KELLY v. CITY OF WATERBURY et al.

114 A. 530

96 Conn. 494

KELLY v. CITY OF WATERBURY et al.

Supreme Court of Errors of Connecticut.

July 22, 1921

Appeal from Superior Court, New Haven County; John P. Kellogg and John W. Banks, Judges.

Action by John E. Kelly, administrator, to recover damages for alleged negligence against the City of Waterbury and Petrosky, a patrolman, McLean, a sergeant of police, and Beach, the superintendent of police, of said city. Demurrer of the city was sustained, and the case tried to the jury. Nonsuit entered as to McLean and Beach, and verdict directed in favor of the city, and in favor of the plaintiff as against Petrosky. The plaintiff appeals from the denial of his motion to set aside the nonsuit in favor of Beach, and from the direction of a verdict in favor of the city, and Petrosky also appeals. No error.

Nathaniel R. Bronson, Lawrence L. Lewis, and Charles E. Hart, Jr., all of Waterbury, for appellant.

Francis P. Guilfoile and Ulysses G. Church, both of Waterbury, for appellees.

WHEELER, C.J.

This action is brought to recover damages for the loss of life of the plaintiff's intestate, caused by the alleged negligence of Petrosky, a patrolman of the city of Waterbury in driving its patrol automobile when in the execution of the business of the police department of the city and by order of McLean, the sergeant of police. The complaint alleges: That Superintendent of Police Beach had the authority to provide experienced and competent drivers for the patrol automobile and although he knew Petrosky was not an experienced and competent driver he permitted him to serve in this capacity that McLean, a sergeant of police, had assigned Petrosky to this duty although he knew him to be inexperienced and incompetent; that the city of Waterbury was alleged to be made liable because of the said negligence of Beach, McLean, and Petrosky.

The demurrer of the city of Waterbury to the complaint was sustained upon the ground that the alleged wrongful acts of Beach, McLean, and Petrosky were performed by them in the exercise of a public and governmental function for which the city could not be held liable. The complaint was not attempted to be amended so as to avoid the decision upon the demurrer. Until reversed on appeal this ruling became the law of the case, and a judgment in favor of the city upon the neglect or refusal of the plaintiff to plead over was a necessary consequence.

The parties and the court appear to have assumed that the issue of the city's liability was before the jury. That was a misconception of the pleadings. Possibly the parties understood that the issue of the city's liability was before the jury because the answer filed subsequent to the demurrer was signed " defendants." But defendants could only include those defendants who were entitled to answer. Since the demurrer had removed the city from the case, until by amendment another or an improved cause of action against it had been filed, it was no longer one of the defendants. The court directed a verdict for the city because it held that the ruling upon the demurrer conclusively determined its nonliability. The verdict and judgment followed, the same judgment as if judgment had been duly entered after the demurrer had been sustained. No appeal was taken from the sustaining of the demurrer, hence its ruling that the defendant city was not liable because engaged through the acts of negligence alleged in governmental duty is not before us. Petrosky's appeal is without merit. The verdict against him was not against the evidence, and we cannot hold that the damages were excessive.

The denial of the motion to set aside the nonsuit as to Beach was clearly right upon the evidence before the court. Without the evidence which was excluded there was no evidence which would sustain a judgment.

Two rulings excluding this evidence are assigned as error. The evidence if admissible was admissible against both Beach and Petrosky.

Mary A Kelly, sister of the plaintiff's decedent, testified that she told the defendant Superintendent of Police Beach, what she had heard a certain patrolman under him say, and that he replied " that he knew he (Petrosky) wasn't just what he should be, but he had done the best he could." Thereupon counsel for the plaintiff asked the witness to use the exact language used by her in her statement to Mr. Beach, including what she had heard from the officers. The claim was to prove from this offer that Beach knew that Petrosky was incompetent when he ordered him upon the duty in the performance of which decedent was injured. The court ruled that in the first instance the inquiry should be whether the witness had heard statements as to Petrosky's competence or incompetence, without stating what these statements were, and then he should give what Beach said in reply. The reply of Beach went no further than as already made. Clearly this was quite insufficient as tending to prove the incompetency of Petrosky. In its ruling the court plainly told counsel that the answer of Beach might require that the entire statement of Miss Kelly as to what she told Beach the officers had told her as to the competency of Petrosky should be...