Rogoff v. Southern New England Contractors Supply Co. Inc.

• Decision Date: 05 March 1943
• Citation: 31 A.2d 29,129 Conn. 687
• Court: Connecticut Supreme Court
• Parties: ROGOFF v. SOUTHERN NEW ENGLAND CONTRACTORS SUPPLY CO., Inc.

129 Conn. 687

31 A.2d 29

ROGOFF

v.SOUTHERN NEW ENGLAND CONTRACTORS SUPPLY CO., Inc.

Supreme Court of Errors of Connecticut.

March 5, 1943.

Appeal from Superior Court, New London County; O'Sullivan, Judge.

Action by Max Rogoff against the Southern New England Contractors Supply Company, Inc., to recover damages for personal injuries allegedly caused by negligence of defendant, brought to Superior Court and tried to jury. Verdict and judgment for plaintiff, and appeal by defendant.

No error.

Charles V. James, of Norwich, Arthur T. Keefe, of New London, and Arthur M. Brown, of Norwich, for appellant.

Francis F. McGuire and Samuel M. Gruskin, both of New London, for appellee.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

JENNINGS, Judge.

This matter was before this court in Boiselle v. Rogoff, 126 Conn. 635, 13 A.2d 753. The general picture is adequately described in the first case. The plaintiff's claims of proof in so far as they are necessary to present the legal issues in this case are as follows: On November 17, 1936, the defendant company was engaged in the general construction business in New London and the plaintiff ran a service station. On that day the defendant sent to the plaintiff a punctured truck tire to be repaired. On inspection, the split rim on which the tire was mounted was found by the plaintiff and the defendant's employee to be defective, worn, cracked and unfit for use. The plaintiff junked the rim and refused to allow the defendant's employee to take it back, telling him that if the defendant attempted to repair it some one might get killed. Thereafter, the rim in some way was recovered by the defendant. If the rim was repaired by welding (as the defendant claimed), the man who did it was inexperienced, and a welded rim is not, in any event, reasonably safe to use, as the defendant should have known. On November 24, 1936, Boiselle, another employee of the defendant, was sent with the defective rim to the plaintiff's place of business, where he mounted the repaired tire and tube and inflated it with ten pounds of air. Neither the plaintiff nor any of his employees saw the rim until the tire had been mounted. Boiselle then requested Parker, an employee of the plaintiff, to inspect and inflate the tire. Parker found the tire properly mounted, put in sixty-five pounds of air and left the tire leaning against the work bench. Thereafter Boiselle asked the plaintiff to help him put the mounted tire in the truck. The plaintiff assented and suddenly, without any warning, the lock ring flew off the tire, injuring the plaintiff severely. The plaintiff was in the exercise of due care and the defendant negligent.

The defendant claimed that the rim, while defective when recovered by it, was properly repaired and welded and not only the inflation but also the mounting was done by Parker, the employee of the plaintiff; that the latter was negligent; and that his negligence should be imputed to the plaintiff.

In its appeal from the judgment, the defendant stresses certain rulings on evidence. These are not properly set up in the finding. Practice Book 1934, p. 105, § 359. Pepe Co., Inc., v. Apuzzo, 98 Conn. 807, 811, 120 A. 681; Dressel v. Gregory, 114 Conn. 718, 719, 157 A. 417. They cover over twenty pages of the printed record. The second so-called ‘ruling,’ for example, contains no less than seven exceptions taken by the defendant and there is nothing in the brief to indicate on which reliance is placed. The same is more or less true of the others. No specific ruling is mentioned in the brief but some of them are objected to on the ground that the opinions of nonexpert witnesses were not admissible as to notice to the defendant that if the cracked rim was repaired it would be unsafe for use, and all thirteen are objected to as containing the opinion of witnesses not qualified to express them. This method of treatment has made it extremely difficult to find out what the defendant is driving at but since the rulings are the most important assignments of error we have decided to consider them. In view of the defendant's procedure, we shall treat the rulings in the same way, that is generally as opposed to specifically.

The statements objected to were made by the plaintiff and Robert E. Leslie. A number of the statements made by the plaintiff were to the effect that he informed the employee of the defendant who first brought the rim to him that if he took it back it would probably be repaired and it would kill somebody if it was used again. The trial court admitted this testimony for the purpose of showing that a statement by an experienced tire man as to the dangers of using the rim even though repaired was brought to the knowledge of the defendant, and it repeatedly and emphatically cautioned the jury that the statements were not admitted to show their truth but, to quote one such caution, ‘merely to get home to the employer that something was said to the employee about this tire, and it is not to be used by the Jury to prove that there was anything wrong with the tire.’ They were admissible for this purpose. Hope v. Valente, 86 Conn. 301, 305, 85 A. 541; Lane v. United Electric Light & Water Co., 88 Conn. 670, 674, 92 A. 430; First National Bank & Trust Co. v. Manning, 116 Conn. 335, 339, 164 A. 881.

The plaintiff and Leslie also gave their opinions as experts as to the condition of the rim, its effect, and the possible causes of the accident....