Martyn v. Donlin

• Decision Date: 03 January 1961
• Citation: 166 A.2d 856,148 Conn. 27
• Court: Connecticut Supreme Court
• Parties: Martha P. MARTYN, Administratrix (ESTATE of John S. MARTYN) v. Robert DONLIN et al. Supreme Court of Errors of Connecticut

Page 856

166 A.2d 856

148 Conn. 27

Martha P. MARTYN, Administratrix (ESTATE of John S. MARTYN) v. Robert DONLIN et al.

Supreme Court of Errors of Connecticut.

Jan. 3, 1961.

William E. Glynn, Hartford, with whom were Jerome T. Malliet, corporation counsel, Hartford, and, on the brief, Charles W. Page, Hartford, for appellants (defendants).

Leon J. RisCassi, Hartford, with whom was William R. Davis, Hartford, for appellee (plaintiff).

Before BALDWIN, C. J., and KING, MURPHY, MELLITZ and SHEA, JJ.

MURPHY, Associate Justice.

The plaintiff is the administratrix of the estate of her son, John Martyn. He was shot and killed by the defendant Donlin, a police officer in the city of Hartford, while he, Martyn, was attempting to elude the policeman as the latter sought to apprehend and arrest him. Donlin had observed Martyn, a youth of seventeen, driving an automobile, shortly after midnight on April 20, 1958, at an excessive speed on Main Street in Hartford. He passed other vehicles going in the same direction on their right, drove erratically and ran through red traffic control signals. Donlin, in a police cruiser, gave chase and meanwhile alerted other police cruisers by radio. He lost sight of Martyn when the latter ran through another red light. Donlin, however, after receiving a radio report, found Martyn's car abandoned on Alden Street. The car had been driven over the curb so that the right front wheel was on the sidewalk; its radio was playing and its lights were on. Donlin, searching the vicinity, heard footsteps and with his flashlight observed Martyn in a driveway. Martyn ran away from the officer, who called to him to stop or 'I'll fire,' to which the youth replied, 'No, I will not,' as he vaulted a fence in the rear yard. Donlin fired his service revolver, fatally wounding Martyn.

The plaintiff brought suit against Donlin and the city of Hartford. She alleged that the shooting and death resulted from the carelessness and negligence of Donlin and that, since he was acting in the performance of his duties, the city was also liable, under § 7-465 of the General Statutes. The defendants, in their answer, admitted the killing by Donlin in the performance of his duties but denied that he was negligent. Upon these pleadings, the case proceeded to trial.

After the plaintiff had rested her case, the defendants sought to introduce evidence as to the circumstances surrounding the shooting. The trial court, on its own motion, ruled that the evidence would be excluded unless the defendants amended their answer and affirmatively alleged that the shooting was done by the officer in attempting to arrest a person whom the officer had reasonable cause to believe had committed a felony and therefore was a justifiable homicide. See General Statutes, § 6-49. When the defendants had amended their answer to allege in a special defense that the killing, though unintentional, was justified, they were unsuccessful in introducing evidence, after objection by the plaintiff, to support that defense. The jury returned a verdict against both defendants, and they have appealed.

The assignments of error which have been pursued on the brief or in argument pertain to the exclusion of the evidence to support the special defense; claimed errors in the charge; and the failure to charge the jury with sufficient specificity as to the definition of a felony and that the theft of a motor vehicle is a felony. Two of the witnesses produced by the defendants were Sergeant John J. Nieb and Patrolman Alfred Noel. There is nothing in the claims of proof of the defendants which mentions Nieb, and the only reference to Noel is to the effect that Donlin had heard over his radio from Noel that Martyn's car was going north on Dean Street, which adjoins Alden Street. In the part of the finding concerning the rulings made in the course of the trial, it is stated that the defendants offered Nieb for the purpose of showing the circumstances surrounding the shooting and of showing that Donlin had reasonable cause to suspect that Martyn had committed a felony. Noel was questioned as to whether he had occasion to pursue an automobile on the evening in question. Whatever questions were propounded to Nieb and Noel, neither was permitted to answer. The finding is insufficient for this court to review these rulings on evidence. Section 405 of the Practice Book provides that, when error is claimed in rulings on evidence, the draft finding and finding shall state in each instance, in a separate paragraph, the question, the objection, the answer, if any, and the exception. In addition, where these do not clearly and sufficiently present the questions of law, a brief statement of such facts as indicate the relevancy or materiality of the evidence should be made so that this court can properly review the disputed rulings. The finding in this case gives us nothing with which to review these rulings. Krasnow v. Krasnow, 140 Conn. 254, 260, 99 A.2d 104; Attruia v. Atturia, 140 Conn. 73, 79, 98 A.2d 532.

Donlin was asked several questions relative to his reasons for pursuing...