Wells v. Lavitt
| Decision Date | 17 May 1932 |
| Court | Connecticut Supreme Court |
| Parties | WELLS v. LAVITT. |
Appeal from Superior Court, Hartford County; Alfred E. Baldwin Judge.
Action by Henry A. Wells, administrator of the estate of Robert Ellsworth Wells, deceased, against Paul Lavitt and others, to recover damages for the death of plaintiff's intestate alleged to have been caused by defendants' negligence. Judgment for plaintiff against defendant named, and defendant named appeals.
No error.
Conclusion that negligence in permitting overloading was proximate cause of overturning of truck and death of boy riding thereon held justified, notwithstanding evidence that road had been oiled and sanded and that truck was proceeding at excessive speed.
William M. Greenstein, of New Britain, for appellant.
Ralph O. Wells and William S. Locke, both of Hartford, for appellee.
Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.
The decedent, a boy, was killed by the overturning of a truck in which he with some forty-nine other boys was being carried from the farm of Max Lavitt in Ellington, where he had been working, to Hartford. The action was originally brought against the driver of the truck, Radville, and Max and Paul Lavitt, and the jury returned a verdict for the plaintiff against all three. The Lavitts appealed to this court, and a new trial was ordered as to them. Wells v. Radville, 112 Conn. 459, 153 A. 154. Upon the retrial Max Lavitt was dropped as a party, and it was stipulated that the case should be heard by the court without a jury and that the evidence offered on the original trial should be considered with the same effect as though the witnesses had appeared in court, but that the parties might introduce additional evidence. The trial court gave judgment for the plaintiff against the only defendant remaining in the case, Paul Lavitt, whom we shall refer to as the defendant, and he has appealed.
The original complaint charged all three defendants with negligence, and referred to Paul Lavitt as the agent of Max Lavitt. Early in the trial the plaintiff called Max Lavitt as a witness and asked him what the relation was between him and Paul Lavitt, and he answered that they were partners. Thereupon the plaintiff amended his complaint so that it referred to the defendant as the partner and agent of Max Lavitt, and the defendant in answering alleged that to be the fact. The trial thereafter proceeded upon the theory that they were partners, it was so presented to us, and we speak of them in the opinion of this court as such. After our decision the plaintiff amended his complaint so as to eliminate the reference to the defendant as a partner of Max Lavitt, and the defendant answered this amendment with a denial. At the beginning of the present trial the plaintiff offered testimony to prove that they were not partners, and the defendant objected upon the ground that this was in effect to impeach the testimony of Max Lavitt whom the plaintiff had called as his witness. It is a rule in this jurisdiction that ordinarily a party may not directly impeach the credit of a witness whom he has voluntarily called. State v. Guilfoyle, 109 Conn. 124, 133, 145 A. 761; Carpenter's Appeal, 74 Conn. 431, 435, 51 A. 126. In the latter case we noted the danger of injustice in too rigid an application of this rule, and we have recognized exceptions to it. One is that, where there is no purpose to attack the credibility of a witness he has called, a party may offer other evidence contrary to his testimony to prove that in reality the facts are not as he stated them. State v. Guilfoyle, supra. In fact such contradictions in testimony are one of the common incidents of trials. The present case presents a somewhat unusual situation, in that the plaintiff in the original trial evidently relied upon and accepted the testimony of Max Lavitt that he and the defendants were partners. The matter was not of particular moment in the aspect the case then took. If when their relationship did become of consequence after a new trial was ordered the plaintiff became satisfied that he could establish the fact that they were not partners he was entitled to offer evidence to that effect, even though to do so would be to contradict the testimony of the witness he had called. The situation falls well within the rule which permits a party to prove a fact to be otherwise than as one of his own witnesses has testified it to be. If in the present instance the plaintiff too readily accepted as true the...
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