Thomas v. Ganezer

• Decision Date: 16 January 1951
• Citation: Thomas v. Ganezer, 137 Conn. 415, 78 A.2d 539 (Conn. 1951)
• Court: Connecticut Supreme Court
• Parties: THOMAS v. GANEZER. Supreme Court of Errors of Connecticut

Page 539

78 A.2d 539

137 Conn. 415

THOMAS v. GANEZER.

Supreme Court of Errors of Connecticut.

Jan. 16, 1951.

Milton Krevolin, A. Arthur Giddon, Cyril Cole and Morton E. Cole, all of Hartford, for appellant.

Cyril Coleman and J. Read Murphy, Hartford, for appellee.

Before BROWN, C. J., and JENNINGS, BALDWIN, O'SULLIVAN and COMLEY, JJ.

BROWN, Chief Justice.

The plaintiff administratrix in this action seeks to recover for personal injuries alleged to have been sustained by her intestate on January 31, 1945, by a fall upon the common steps leading from the defendant's tenement house to the public sidewalk on Governor Street in Hartford. The complaint alleges that the icy and slippery condition of the steps, due to the defendant's negligence, caused the decedent's fall. The jury returned a verdict for the defendant. The plaintiff has appealed from the court's denial of her motion to set it aside and from the judgment. The principal contested question of fact before the jury was whether the decedent fell on the defendant's steps, as claimed by the plaintiff, or upon the public sidewalk, as contended by the defendant. Since the jury could reasonably have found upon the evidence in the record that the fall occurred on the sidewalk, thus exculpating the defendant from liability, the court properly refused to set aside the verdict as being against the evidence.

The first claim upon the appeal from the judgment relates to the admissibility of statements made shortly after the accident by the defendant's witness Kondrasiewicz. These were admitted by the court for the purpose of rehabilitating his testimony on direct that he had seen the decedent fall, after the plaintiff on cross-examination had laid in his statement, procured by her investigator almost five years after the accident, that he did not see the decedent actually fall but came upon the scene aftwards. One of the statements objected to was in writing and signed by the witness. It had been given to the defendant's witness Youell thirty-six days after the accident and had been accompanied by oral statements to the same effect as Kondrasiewicz' testimony on direct. The other statement was one volunteered to the defendant's witness Dorne at the locus of the accident about seven months after it occurred. During his cross-examination, Kondrasiewicz testified that the statement he had given the plaintiff's investigator was true and correct. In both his written and oral statements to Youell and in his statement to Dorne, he had declared that he saw the decedent fall on the sidewalk at a point from five to eight feet from the foot of the steps.

It has been stated as the general rule that a party cannot strengthen the testimony of his own witness by showing that he had made previous statements to the same effect. Palmer v. Hartford Dredging Co., 73 Conn. 182, 188, 47 A. 125. There are exceptions, however, Fitzgerald v. Savin, 119 Conn. 63, 69, 174 A. 177. We have said: 'There is eminent authority for the view that under some circumstances it may be within the discretion of the trial court to permit evidence of prior consistent statements to be given to rebut testimony tending to show an inconsistent statement. Stewart v. People, 23 Mich. 63, 74 * * *.' State v. Palm, 123 Conn. 666, 677, 197 A. 168, 172. The plaintiff argues that this exception is not applicable unless the witness had denied making the inconsistent statement. This claim finds support in language used by the court in the Stewart case, supra. Since the court there held, 23 Mich. at page 76, however, that the prior statement was properly admitted in the trial court's discretion, the language upon which the plaintiff relies is dictum. Wigmore discusses this case in considering testimonial rehabilitation by prior consistent statements. 4 Wigmore, Evidence (3d Ed.) p. 198. He points out (p. 197) that to reason that prior consistent statements should be admitted after the introduction of an inconsistent statement, on the ground that if a contradictory statement counts against a witness a consistent one should count for him, is fallacious. He maintains, however, that the prior consistent statement is relevant to controvert the making of the inconsistent one. He further states (p. 199) that to so hold 'does not deny the correctness of the preceding argument, which points out that a consistent statement does not explain away a self-contradiction; but it shows that argument to rest upon the assumption that there has been a self-contradiction, and it reminds us that consistency of statement may serve to overthrow that assumption.'

Sound reason for applying this principle in the instant case is effectively stated by this paragraph from the trial court's memorandum on the motion to set aside the verdict: 'The present case well illustrates the value, in accordance with Wigmore's reasoning, of a prior consistent statement to overthrow the assumption of inconsistency that might arise from the bare introduction of the statement which was made a few days before trial. More than four years and a half had elapsed between the giving of the two statements. The defendant might well claim that the apparent inconsistency between the recent statement and the witness's testimony could be accounted for by lapse of memory and that his memory had been refreshed before he testified. That he had made a statement shortly after the event when his memory was fresh which was in accord with his testimony, clearly was evidence which would tend to prove that the apparent inconsistency of his later statement was due to the fact that at the time he made it his memory had failed and had not been refreshed. With that explanation his testimony and his later statement could be reconciled and the apparent inconsistency be explained away. For that reason, upon the reasoning of Wigmore, the prior consistent statement was admissible.'

The cases cited by Wigmore indicate the differing views of the courts upon the question of rehabilitation by prior consistent statements after impeachment by inconsistent statements. 4 Wigmore, op. cit., § 1126. Even where the general rule precluding it prevails, there are well-recognized exceptions. Thus, in New York, the rule is that the testimony of an impeached witness may not be bolstered by showing that he has made similar consistent statements, but 'There is a recognized exception to the rule where the testimony of a witness is assailed as a recent fabrication. Then his testimony 'may be confirmed by proof of declarations of the same tenor before the motive to falsify existed.' Ferris v. Sterling, 214 N.Y. 249, 254, 108 N.E. 406.' Crawford v. Nilan, 289 N.Y. 444, 450, 46 N.E.2d 512, 515.

"Recently fabricated' means the same thing as fabricated to meet the exigencies of the case. * * *' People v. Singer, 300 N.Y. 120, 124, 89 N.E.2d 710, 711. The witness' inconsistent statement introduced by the plaintiff was one procured by her investigator but a matter of days before the trial, was not of the witness' own composition, and was undated and unsupported by any testimony as to the method of its procurement. Further, it was obtained almost five years after the consistent statements relied upon by the defendant had been made. Under the circumstances, while there is no suggestion that this statement was 'recently fabricated' by the witness himself designedly out of self interest, as seems to have been true in the New York cases cited above, the possibilities, if not the probabilities, were such as to present a situation sufficiently analogous to that in those cases to warrant the application of the principle therein enunciated. As Cooley, J., said in Stewart v. People, 23 Mich. 63, 76, 'We think the circuit judge ought to be allowed a reasonable discretion in such cases, and that though such evidence should not generally be received, yet that his discretion in receiving it ought not to be set aside except in a clear case of abuse; such as, we think, did not exist here.'

We are satisfied, upon the rather unusual circumstances disclosed by this record, that the trial court acted...