Whipple v. Fardig

• Decision Date: 10 July 1929
• Citation: 109 Conn. 460,146 A. 847
• Court: Connecticut Supreme Court
• Parties: WHIPPLE v. FARDIG ET AL.

146 A. 847

109 Conn. 460

WHIPPLE v. FARDIG ET AL.

Supreme Court of Errors of Connecticut.

July 10, 1929

Appeal from court of Common Pleas, Hartford County; Arthur E Howard, Jr., Judge.

Action by Walter W. Whipple for injuries to his automobile truck against John Fardig and another. Complaint dismissed after issue joined upon motion of the defendants and judgment giving defendants costs, and plaintiff appeals. Error, and new trial ordered.

Maltbie J., dissenting.

Edward H. Kelly, of Hartford, for appellant.

Frederic J. Corbett, of Hartford, for appellees.

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

HAINES, J.

The automobile truck of the plaintiff was damaged December 16, 1926, at Unionville by reason of a collision with an automobile driven by John Fardig and owned by Agnes Fardig, his wife. This was a family car and was being driven by the husband with the consent of the wife, from his home in Hartford to Torrington, at which latter place he was under employ by the Lotz Asbestos Company.

On January 17, 1927, the plaintiff brought an action against the Lotz Asbestos Company for damage to his truck caused by the collision, in the belief that at the time of the collision John Fardig was engaged upon business for that company as its agent and servant. Agency and negligence were the two issues upon which that case rested. On March 30, 1927, a jury rendered a general verdict in favor of the defendant. The following day, March 31, 1927, a writ and complaint against the present defendants was delivered to the sheriff for service, but it was not until December 28, 1927, that the officer was able to make service of attachment or garnishment. On the latter date a new writ was substituted naming the Mutual Bank & Trust Company and the Western Union Telegraph Company as garnishees, and on that day this writ and complaint was served.

The first defense was that this action was not brought within one year from the date of its accrual, and to this the plaintiff replied that it was brought within one year from the decision of the former action and was authorized by the provisions of General Statutes 1918, § § 6171 and 6172. The finding shows that there was no evidence in the record in the former case, as to the ownership of the automobile until John Fardig testified at the trial that it belonged to his wife, Agnes Fardig. It also shows that there was no competent evidence as to whether the jury rendered the verdict in the former case upon the issue of agency or that of negligence, or both. It also appears that the court in the present action afforded the plaintiff an opportunity to prove that the verdict was based only upon the belief of the jury that the plaintiff had failed to name the right defendant. The court ruled that the plaintiff could not offer evidence in support of the issue of negligence in the present action until he had " succeeded in rebutting the statute of limitations," and that the doctrine of res judicata applied to the issue of negligence; whereupon, upon motion of the defendants, the court dismissed the action.

The pleadings raised but two issues: (a) Was the action authorized by General Statutes 1918, § 6172, notwithstanding the fact that it was brought more than one year after the negligent acts complained of; and (b) was the plaintiff's damage caused by the negligence of these defendants without contributory negligence on the part of the plaintiff.

It appears that the first action was fully heard by the court and jury upon the question whether the driver of the car was the agent of the asbestos company, and whether there was negligence chargeable to the latter. No interrogatories were submitted to the jury, and their general verdict imports that both issues were found in favor of the defendant company. Aaronson v. New Haven, 94 Conn. 690, 110 A. 872, 12 A.L.R. 328; Callahan v. Jursek, 100 Conn. 490, 493, 124 A. 31; Brown v. Wright, 100 Conn. 193, 199, 123 A. 7; Spring v. Nagle, 104 Conn. 23, 28, 131 A. 744; Ford v. H. W. Dubiskie & Co., 105 Conn. 572, 582, 136 A. 560; O'Neil v. Larkin-Carey Co., 106 Conn. 153, 155, 137 A. 721; Pentino v. Gallo, 107 Conn. 242, 244, 140 A. 105.

The trial court properly struck out the testimony of jurymen previously admitted as to the basis of their judgment. It is contrary to our long-established practice and policy to receive such testimony from members of the jury which considered the case. From earliest times in this state, such disclosures of the deliberations of a jury in making up their verdict have not been permitted, and " we have never seen reason to doubt the soundness of the reasons which underlie this rule of practice." Valentine v. Pollak, 95 Conn. 556, 559, 111 A. 869, 871.

We must therefore rest upon the legal conclusion that the Lotz Asbestos Company was, after that verdict, free from the charge that it was the principal or master of the driver of the car, and the further charge that its negligence was the proximate cause of the damage, and that the contributory negligence of the plaintiff did not materially contribute thereto. The present defendants, who were strangers to the former action, now seek indirectly to obtain...