Mendez v. Dorman

• Decision Date: 07 November 1963
• Citation: 195 A.2d 561,151 Conn. 193
• Court: Connecticut Supreme Court
• Parties: Luis MENDEZ v. Kenneth DORMAN. Supreme Court of Errors of Connecticut

Page 561

195 A.2d 561

151 Conn. 193

Luis MENDEZ v. Kenneth DORMAN.

Supreme Court of Errors of Connecticut.

Nov. 7, 1963.

Paul L. Blawie, Bridgeport, with whom were Anthony T. Varone, Bridgeport, and, on the brief, Alfred R. Belinkie, Bridgeport, for the appellant (plaintiff).

Paul V. McNamara, Bridgeport, with whom were Donald J. St. John and, on the brief, Raymond J. Doyle, Jr., Bridgeport, for the appellee (defendant).

Before KING, C. J., and MURPHY, SHEA, ALCORN and COMLEY, JJ.

KING, Chief Justice.

At about nine o'clock on the morning of Monday, September 23, 1957, the plaintiff, a boy of sixteen, was riding as a passenger on the back of a bicycle operated by another boy in a westerly direction along Boston Avenue, in Bridgeport. The defendant was operating a tractor-trailer truck, also in a westerly direction, along the same street. A dump truck was parked, also headed west, at the northerly curb of Boston Avenue. The day was clear and the pavement was dry. When the bicycle was approximately alongside the parked dump truck, the right rear wheel of the defendant's trailer collided with the bicycle. This action was brought to recover damages for personal injuries sustained by the plaintiff as a result of the collision. From a verdict for the defendant rendered October 9, 1962, the plaintiff appealed.

The sole assignment of error attacks a ruling on evidence, which in turn calls in question the proper interpretation and application of § 52-178 of the General Statutes, as amended in 1959 and 1961. ¹ The plaintiff, after laying in evidence a map, a hospital record and certain photographs of the locus, called the defendant as his first witness, under the provisions of the quoted statute.

In response to the plaintiff's questions, the defendant testified that he lived in Youngstown, Ohio; that at six o'clock on Sunday morning, September 22, 1957, he left Youngstown, operating the tractor-trailer truck with a cargo bound for New Haven, Connecticut; that his route was through Ridgefield, New Jersey, where he took a layover break; that from there he had driven to New Haven, whence he left for Bridgeport about 8:30 on the morning of the accident; that he had been alone throughout the journey from Youngstown and that the total elapsed time between the start of the trip in Youngstown and the time of the accident in Bridgeport had been about twenty-seven hours.

At this point, the plaintiff asked the defendant whether, except for the layover in Ridegfield, he had been driving continuously during the elapsed time. The defendant objected on the ground that the question went beyond the allegations of the complaint in that the specifications of negligence alleged nothing about lack of sleep or fatigue. No evidence had then been elicited as to how the accident happened, and, except for the exhibits hereinbefore mentioned, the evidence had covered only the testimony of the defendant, hereinbefore outlined, as to his residence and the timing and route of his trip from Youngstown.

The plaintiff's claims for the admissibility of the question were confined to two grounds. The first ground was that the evidence was relevant under the final specification of negligence in the complaint, which charged negligence 'in that under all the circumstances then and there prevailing, the defendant failed to act in a reasonable and prudent manner.'

Although this final specification, in the absence of any motion for a more specific statement, covered a wide field, it is equally clear that it was wholly inadequate to warrant a recovery based on negligence in the operation of a vehicle by one lacking sufficient sleep or suffering from undue fatigue. Neither the operation of the tractor-trailer truck the day before, nor where, to what extent and how long, the defendant had rested during the Ridgefield layover, had anything to do with the 'circumstances then and there [Monday morning in Bridgeport] prevailing'. Especially on the then state of the evidence, the plaintiff's claim of relevancy was without merit.

We turn now to the second ground of claimed admissibility, which was that the court, in excluding the question, improperly limited the scope of the statutory examination. Prior to the original enactment of what is now § 52-178, a party could not be compelled by his opponent to testify. The statute removed this privilege and placed the adverse party in the same position as any other witness. Banks v. Connecticut Ry. & Lighting Co., 79 Conn. 116, 117, 64 A. 14. Under the statute as it stood prior to the amendment of 1959, the right to cross-examine a party's own witness, whether or not an adverse party, rested in the sound discretion of the court and largely turned on the question of hostility, surprise or deceit. Sandora v. Times Co., 113 Conn. 574, 585, 155 A. 819; Gondek v. Pliska, 135 Conn. 610, 616, 67 A.2d 552. If the witness was the sole source of proof of a fact essential to the examining party's case, somewhat greater liberality in cross-examination would ordinarily be allowed. See cases such as Inhabitants of Town of Stratford v. Sanford, 9 Conn. 275, 284; Carney v. Hennessey, 77 Conn. 577, 586, 60 A. 129; Marshall v. Fenton, 107 Conn. 728, 733, 142 A. 403. There was, however, no absolute right to cross-examine merely because the witness was an adverse party and had been called by the opposing party. Actually, the rule seldom, if ever, could work any hardship, since there would be little, if any, occasion to ask leading questions or to attack the credibility of a witness, even though he was the adverse party, unless his testimony had in fact been...