Toletti v. Bidizcki

• Decision Date: 12 June 1934
• Citation: 173 A. 223,118 Conn. 531
• Court: Connecticut Supreme Court
• Parties: TOLETTI v. BIDIZCKI.

173 A. 223

118 Conn. 531

TOLETTI v. BIDIZCKI.

Supreme Court of Errors of Connecticut.

June 12, 1934

Appeal from Court of Common Pleas, New Haven County; Edward J. Finn Judge.

Action by Harry Toletti, administrator of the estate of Frances Toletti, against Alex Bidizcki to recover damages for the death of plaintiff's decedent alleged to have been caused by the negligence of defendant's servant and agent brought to the court of common pleas and tried to the jury. Verdict and judgment for the plaintiff, and appeal by the defendant.

No error.

J Warren Upson, of Waterbury, for appellant.

James E. McKnight, of Waterbury, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY, JJ.

BANKS Judge.

Plaintiff's decedent was struck and killed by the automobile of the defendant as she was crossing Cherry street in the city of Waterbury. The defendant appeals from the denial of his motion to set aside the verdict of the jury in the plaintiff's favor, also for claimed errors in the charge of the court and rulings on evidence. The negligence of the operator of the car appears not to be controverted. Defendant contends that there was no evidence properly before the jury upon which it could reasonably find that the operator, John Lazeski, was engaged in the business of the defendant when the accident happened. Plaintiff relies for proof of the agency upon admissions claimed to have been made by the defendant in a conversation a few days after the accident. Plaintiff testified that he went to defendant's place of business, which was a restaurant at 264 Hamilton avenue, to inquire what he was going to do about the matter; that defendant said he was very sorry for what had happened; that, if he had known that " John" was drunk, he would not have sent him up Buck's Hill to get stuff for his restaurant; that he let him take his car to go up on the farm to get this stuff; and that afterward he was to use the car as he saw fit for the rest of the day. Upon cross-examination it developed that the plaintiff had never seen the defendant before, and on the redirect plaintiff was asked how he knew that the man he talked with was Bidizcki, and replied that he walked in the place 264 Hamilton avenue and inquired if Alex Bidizcki was around, and that this man, who was the sole occupant of the place, said that he was Alex Bidizcki. Defendant moved that the answer be stricken out as hearsay, and the motion was denied. The defendant contends that this evidence was inadmissible to establish the identity of the person with whom the plaintiff talked, and that consequently there was no evidence before the jury that the operator of the car was the defendant's agent.

The statement by a person of his name, like his statement of his age, is in the nature of hearsay evidence in the sense that his source of information is what has been told to him at some time by others, but such statements are universally relied on as a source of knowledge both in the ordinary affairs of life and in the everyday business of the courts. 1 Wigmore, Evidence (2d Ed.) § 667. The plaintiff testified without objection that he had talked with the defendant and that the latter had made the statements recited above. That it subsequently developed that the plaintiff had not previously known the defendant did not render this evidence inadmissible. The defendant, of course, would not be bound by the statements attributed to him unless there was evidence from which the jury could reasonably find that he was the person who made them. The evidence that the person with whom the plaintiff talked was in sole charge of the defendant's place of business, upon inquiry being made for Alex Bidizcki stated that he was the man, that he was sorry for the accident, and indicated in his conversation with the plaintiff a knowledge of the circumstances connected with it, together with the fact that the witness described the physical appearance of the man with whom he talked, and the defense offered no evidence that such was not the physical appearance of the defendant-with which the driver Lazeski at least was familiar-all tended to identify him as the defendant, and was sufficient to justify a finding by the jury that he was the defendant.

With the identity of the defendant as the person with whom the plaintiff talked established to the satisfaction of the jury they might reasonably find from the admissions made by him that his car was being operated on the day of the accident by Lazeski upon the business of the defendant. To hold him responsible for the death of plaintiff's decedent, it must further appear that it was being so operated at the time of the accident. Defendant claims that upon the evidence it was as probable that the accident happened while Lazeski was using the car under the permission given him to use it as he saw fit for the remainder of the day as that he was then going to Buck's Hill on the errand for the defendant. Lazeski testified that he left Bidizcki's place of business in the car between 2:30 and 3 o'clock in the afternoon, and made no stop from the time he left until the accident. ...