Lombardo v. Simko

• Decision Date: 27 July 1965
• Docket Number: No. CV,CV
• Citation: 3 Conn.Cir.Ct. 363,214 A.2d 911
• Parties: Joseph LOMBARDO et al. v. Stephen F. SIMKO. 2-632-18304.
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division

Page 911

214 A.2d 911

3 Conn.Cir.Ct. 363

Joseph LOMBARDO et al. v. Stephen F. SIMKO.

No. CV 2-632-18304.

Circuit Court of Connecticut, Appellate Division.

Argued Feb. 15, 1965.

Decided July 27, 1965.

A. Reynolds Gordon, Bridgeport, for appellant (defendant).

Samuel C. Derman and Richard T. Meehan, Bridgeport, for appellees (plaintiffs).

KOSICKI, Judge.

The plaintiffs sued the defendant for injuries to person and property caused by the negligence operation by the defendant of his automobile, resulting in its collision with an automobile, operated by Joseph Lombardo, in which the owner, James Lombardo, was a passenger. Pursuant to the jury's verdicts, the court rendered judgment for plaintiff Joseph in the amount of $1412 and for plaintiff James in the amount of $185.04. The defendant moved to set aside the verdicts because of their being contrary to law, against the evidence, and excessive. As to the last ground, the verdicts did not exceed the necessarily flexible limits of fair and reasonable compensation for the injuries suffered, nor were they 'so large as to offend the sense of justice and compel a conclusion that the jury were influenced by partiality, prejudice or mistake.' Gorczyca v. New York, N. H. & H. R. Co., 141 Conn. 701, 703, 109 A.2d 589, 591; Vogel v. Sylvester, 148 Conn. 666, 669, 174 A.2d 122, 96 A.L.R.2d 893. The assignment of errors is directed soley at claimed errors in the rulings of the court excluding four exhibits proffered by the defendant, and in refusing an instruction to the jury requested by the defendant.

The corrected finding filed by the trial court states that the plaintiff Joseph offered evidence to prove and claimed to have proved the following facts: As a result of an automobile collision, caused by the negligence of the defendant, the plaintiff suffered a sprained neck, severe headaches, nausea, dizziness and pain requiring medical attention and the taking of pills for relief. Because of these injuries, he was unable to return to work for a number of days. He made thirty visits to his physician for treatment over a period of three months. At the time of the accident, the plaintiff lived with his wife and children and his brother, the plaintiff James. No member of the household testified except the two plaintiffs.

The defendant offered evidence to prove and claimed to have proved the following, as narrated in the finding corrected by the trial court: Joseph Lombardo, at the time of the accident and the time of the trial, lived at the same address as his wife and four children and his brother, James. James testified concerning Joseph's injuries his testimony being limited to the statement that Joseph complained on the date of the accident that he was injured. The defendant requested the court in writing to charge the jury as follows: 'The failure of a party to produce a witness who is within its power to produce and who would naturally have been produced by that party, permits the inference that the evidence of the witness would be unfavorable to that party's cause. This failure to offer such evidence is not proof of any specific fact, but it does permit the inference that the evidence of the witness would be unfavorable to the party's cause to be weighed with the entire evidence in the case. Secondino v. New Haven Gas Company, 147 Conn. 672, 675, 165 A.2d 598. Ross v. Koenig, 129 Conn. 403, 408, 28 A.2d 875; Town of Newtown v. Town of Southbury * * * Conn. 251, 254, 123 A. 278.' The presiding judge refused so to charge and did not incorporate the substance of the request in his instructions to the jury.

The first assignment of error is directed at the court's ruling excluding a purported statement signed by both plaintiffs offered to show admissions against interest and prior or inconsistent statements, and for the purpose of affecting the credibility of the plaintiffs. The statements, consisting of a printed form prepared and sent to the plaintiffs by the liability insurer of the defendant, contained questions to be answered by the claimants. The court excluded this statement because it failed to meet the preliminary requirements of General Statutes § 52-147. This section reads as follows: 'In any action to recover damages for personal injuries no written statement concerning the facts out of which the cause of action arose given by either party to the other, or to his agent, attorney or insurer, shall be admissible in evidence unless * * * a copy thereof is retained by the party giving such statement or delivered to him at the time such statement was given or within thirty days thereafter.' The ground of objection was that a copy of the statement was not delivered to either plaintiff at the time the statement was given or within thirty days thereafter. This portion of the statute has not been construed by our Supreme Court of Errors. In other jurisdictions, where analogous situations have arisen under statutes similar to ours, it has generally been held that a statement made by a person injured in an accident is not admissible in evidence unless he is furnished with a copy of the statement at the time of or within a certain period after his making of it. See such cases as Yeager v. Chapman, 233 Minn. 1, 45 N.W.2d 776, 22 A.L.R.2d 1260; Fendrick v. Faeges, 117 So.2d 858 (Fla.Dist.Ct.App.); Spellman v. Metropolitan Transit Authority, 328 Mass. 446, 104 N.E.2d 493; and note, 22 A.L.R.2d 1269 and cases cited. We need not go so far as to rule that the exclusion would apply to any unsolicited statement voluntarily made by the injured person to the defendant or his insurer or persons representing them, as was held in the Spellman case, supra. Here, admittedly the statement was given at the request of the defendant's insurer and on a printed form prepared by it, and at no time was a copy delivered to the plaintiffs.

'In the absence of anything in a statute to indicate the contrary, and we find nothing here, 'words and phrases shall be construed according to the commonly approved usage of the language * * *'. General Statutes § 1-1; State v. Moran, 99 Conn. 115, 118, 121 A. 277, 36 A.L.R. 862; Pierce v. Albanese, 144 Conn. 241, [251,] 254, 129 A.2d 606.' Baker v. Norwalk, 152 Conn. 312, 315, 206 A.2d 428, 430. It is to be noted that the statute applies only in an action to recover damages for personal injuries. The ruling of the court excluding the statement in connection with the first count, pertaining to damages claimed by the plaintiff Joseph Lombardo for personal injuries, was correct. As to the action of James Lombardo, claiming only property damage under the second count, the ruling was erroneous. Carta v. Providence Washington Indemnity Co., 143 Conn. 372, 380, 122 A.2d 734. This, however, has not been pursued specifically in the appeal; we therefore disregard its cursory mention in the defendant's brief and deem it abandoned. Moreover, the issue of liability as to this plaintiff has not been questioned, either on account of the defendant's negligence or on account of contributory negligence on the plaintiffs' part. Inasmuch as this assignment was the only one which had any bearing on the case of James, we need not consider, as to him, any of the other grounds advanced in the appeal. The judgment in his favor stands. Hereinafter, the word plaintiff shall refer only to Joseph.

The second and third assignments of error may be considered together. These assignments attack the rulings of the court in refusing to admit in evidence the files of the Superior Court in Fairfield County in two negligence actions, unrelated to the present case, in which the plaintiff sought damages for personal injuries. The court sustained the plaintiff's objections that the proffered exhibits were irrelevant and remote. In one action, the complaint was returned to court on the first Tuesday of February, 1957, and among other injuries claimed by this plaintiff to have been sustained on February 19, 1956, was an injury to his neck, which injury was alleged to be permanent in nature. The docket entries show that the pleadings were closed and on November 29, 1960, a claim was filed by the plaintiff for the trial list. No further proceedings are shown. In the other action, the complaint was returnable to the first Tuesday of November, 1958, and alleged injuries caused by the defendant's negligence on March 21, 1958, to various parts of the plaintiff's body, including a whiplash injury to his neck and the muscles and tendons thereof. In response to a motion for disclosure, dated January 20, 1960, the plaintiff stated that he had 'never fully recovered.' A docket entry shows that this action was withdrawn on July 19, 1962. It is the claim of the present defendant that these proffered exhibits were relevant and material on the issue of injury, which in the present complaint is alleged to be of a 'serious, painful and permanent nature, in that * * * [the plaintiff] sustained a severe sprain of the muscles and tendons of the neck' It is also asserted that the evidence offered was in the nature of prior inconsistent statements and would tend to affect the credit of the plaintiff's testimony.

The trial court has a wide discretion as to the admission or exclusion of evidence involving relevancy and remoteness. Morico v. Cox, 134 Conn. 218, 224, 56 A.2d 522. 'Unless excluded by some rule or principle of law, and fact may be proved which logically tends to aid the trier in the determination of the issue. Evidence is admitted, not because it is shown to be competent, but because it is not shown to be incompetent. * * * 'If the evidence offered conduces in any reasonable degree to establish the probability or improbability of the fact in controversy, it should go to the jury.' Insurance Co. v. Weide, 78 U.S. 438, 11 Wall. [U.S.] 438, 440, 20 L.Ed. 197.' Plumb v. Curtis, 66 Conn. 154, 166, 33 A. 998, 1000; Wynehouse v. Mandelson, 84 Conn. 613, 617, 80 A. 706; Locke v. Kraut, 85 Conn. 486,...