115 A. 11 | Conn. | 1921
Lead Opinion
Error is assigned in the failure of the court to submit to the jury the issue of whether the defendant city was engaged in the performance of a governmental duty at the time Matri, the guard at the reservoir, shot the plaintiff.
If it be assumed that the defendant is right in its position that either the second defense was improperly eliminated from the case by demurrer, or, if not, that the issue of governmental duty did not need to be affirmatively alleged, or that sufficient evidence upon this subject was introduced to make it necessary to submit this question to the jury in accordance with defendant's requests, — we do not think that the trial court committed harmful error in failing to make such submission. When a municipality is engaged in the performance of a public duty for the public benefit, and not for its own corporate profit, it will be immune from liability for injuries done in the performance of such acts. The defendant city was not engaged upon such a duty at the time the plaintiff suffered her injuries. In collecting, distributing and vending water, it was engaged in the performance of acts done in the management of its property or rights for its own corporate benefit or profit and that of its inhabitants, and for injuries caused by it through its negligent acts it cannot plead governmental immunity. So that, upon the conceded facts in this case, the question of governmental immunity did not arise in the case, and we have no occasion to consider the ruling upon the demurrer or the other claims made by the defendant upon this issue. The case of Hourigan v. Norwich,
Complaint is made by the appellant of the charge: "and the board of Water Commissioners had the power to employ the superintendent with the powers hereinbefore set forth." The claim of the defendant is that the acts of Matri were not the acts of an authorized agent of the city, since the act of Burnap, in employing Matri as a guard, was unauthorized by the board of water commissioners; and that the board did not have the power to preserve, protect and manage the water supply by the employment of a guard, without the approval of the court of common council. The superintendent's duties were particularized in the evidence, by having the finding as to them in Hourigan
v. Norwich,
In Hourigan v. Norwich,
A number of rulings on evidence were excepted to.
1. The plaintiff's witness Pitcher, testified as to having taken several photographs of the locus. On cross-examination he was asked whether he had taken other photographs showing a fence extending across the road, and also photographs of other permanent objects in the roadway. This appears to have been legitimate cross-examination, but its exclusion did not materially harm the defendant. It could have secured these photographs and laid them in evidence if it had deemed them of importance in the case.
2. The same witness was on redirect examination asked to describe the reservoir as to its surroundings *591 and attractiveness to the people. He replied that he and others frequently visited the reservoir to see it and take in the scenery. Defendant objected to the evidence, and asked to have its exception noted. The court declined to permit the exception to be noted, because no objection had been noted. The trial court was in error in its understanding of the record. The answer was irrelevant and irresponsive, and should have been stricken out. But the subject-matter is too inconsequential to predicate harmful error upon.
3. The plaintiff's direct examination proceeded as follows: "Q. You are not able to earn anything at your business? A. Practically nothing. Q. How are you providing for yourself? A. I have been staying with my cousin the last two months — relatives. Q. Not paying anything, are you? A. No." The second question was objected to as an element of damage, and exception taken to the ruling admitting it. These questions were corroborative of the first question upon this subject, and were admissible as tending to prove, as an element of damage, the inability of the plaintiff to pursue her former occupation.
4. The plaintiff testified upon her direct examination as to the amount of the hospital bill, and the bill was then laid in evidence against the objection and exception of the defendant. The course taken was the ordinary, everyday practice. No reasonable objection could be made to the admission of the bill.
5. Dow testified on his direct examination for the plaintiff, that he was the driver of the automobile in which the plaintiff was riding when shot. Upon cross-examination, for the purpose of showing that he did not use due care, he was inquired of as to whether he knew that the United States entered into war with Germany in April, 1917, and of various steps taken in Connecticut toward meeting the military emergency. *592 He was also inquired of as to whether he knew that other cities around Norwich were guarding their water supply with armed guards at that time. All of these inquiries were excluded because not cross-examination. The ruling was right. If the witness had testified as to his not knowing the reservoir was guarded, he might have been cross-examined as to whether other cities in proximity to Norwich were guarding their water supply; but the record does not present that situation.
6. The defendant inquired of its witness Burnap, on his direct examination, as to what others were doing to guard their public and quasi-public works during the year 1917, in order to show the war-emergency conditions, as bearing upon the due care to be exercised by Matri, the guard, and the defendant city, as well as the driver of the automobile in which plaintiff was. This line of inquiry was properly excluded as immaterial and as raising collateral issues, inasmuch as the plaintiff conceded the right of the defendant city to put armed guards at the reservoir, and never questioned the selection of a guard and his equipment, and the notice given to those at the reservoir or those coming in contact with the guard.
7. The offer to prove by the expert Hagberg as to the difference in report between shots in the air and those taking effect, was excluded because of failure to sufficiently qualify the witness. Whether an expert is properly qualified or not to give an opinion is to be decided by the trial court, and unless the ruling shows an abuse of discretion, it will not be disturbed by the appellate court. Barber v. Manchester,
8. The ruling admitting the opinion of Funk, over *593 defendant's objection that he had not been duly qualified, was correct.
9. For the purpose of showing the mental characteristics and disposition of Matri, the guard — that he was of quick temper, of poor judgment, excitable, and unfit to act as a guard — the plaintiff, against the objections of the defendant, introduced the evidence of McNamara, that shortly after the shooting of the plaintiff he drove to the reservoir and was stopped by Matri, who asked him what he was doing there, and on being told by McNamara he was just out for a drive, Matri, speaking brokenly, and appearing much excited, raised his gun and said, "I am a good mind to blow your damned brains out." This evidence was a species of character evidence. CHIEF JUSTICE TORRANCE pointed out in his article on Character Evidence, in 12 Yale Law Journal, p. 352, that "in our law . . . character has no single, well defined, technical meaning." Character, he says, may mean actual character or disposition, or reputed character; and actual character, when used in the sense of nature or disposition, may mean the entire character — the sum of all the traits — or it may mean a single trait of character. The mental characteristics of Matri, which the plaintiff was attempting to prove by this offer, were of the latter class — the single trait of character. Character in all these different senses, and hence the single trait of character, might be proved in three possible ways: (1) The estimate in which the individual is held in the community; that is, his general reputation as to the trait in question. (2) The opinion as to this trait of those who have known the individual and had the opportunity to know whether he possessed this trait or not. (3) The acts of the individual under somewhat similar circumstances, from which his character as to this trait may be inferred. *594
The evidence of general repute affords the basis for an inference as to the actual character, whether it be the entire character or a single trait of character. Method one is generally recognized as an established method of proving character. Method two is permitted in some jurisdictions, but in most it is denied. Whether or not one was of quick temper will require proof of a mental characteristic, and this is the proof of a fact. No one knows so well about this fact as he who has known the person and had the opportunity to determine it. How much more convincing is such evidence than that of a witness who testifies to the general repute of this person as to this mental characteristic. His testimony is based upon hearsay, and quite likely rumor and gossip. If mental characteristic is a fact, there is no valid reason why this fact may not be proved by any witness who knows what it is. Personal observation and personal knowledge are a more trustworthy reliance than general reputation. An article from the Law Times, quoted in 12 Central Law Journal, 414, 416, expresses, we believe, the common judgment upon this matter: "Surely, in the common sense conduct of affairs, there would not be a moment's hesitation whether, in investigating the character of a man, to place more dependence on a deliberate opinion formed as the result of personal contact and experience, or on a recollection of the random utterances of an indefinite number of persons who may never have seen the object of their garrulity, nor have had the remotest opportunity of forming a judgment upon his merits." In his article on "The Artificiality of Evidence," 21 Yale Law Journal, 105, 112, CHIEF JUSTICE BALDWIN speaks of the advanced ground which this court has taken in recent years in broadening our law of evidence that it may let in the truth. An example of this is found in Vivian's Appeal, *595
We think the decisions to which we have referred, and others to which we need not refer, require the admission of evidence of character from those who know. Modern works on evidence of highest repute deplore the fact that character evidence by this method of proof is so generally excluded, and regard it as one of the anomalies of the law of evidence. 3 Wigmore on Evidence, §
The third suggested method of proving character was that adopted in this case. By all authority, character — whether the entire character or disposition, or a single trait of character — cannot, except in certain defined cases, be proven by specific instances, or by the inference to be drawn from them. The reasons assigned for the rule are that the introduction of specific instances would raise collateral issues and unduly prolong the trial, and be unfair, since no one could without notice be prepared to explain any act in his entire life. We have ruled upon this very matter several times, and we have no occasion to add to the discussion then had. Betts v. Lockwood,
Another objection which might have been taken to this evidence was that the action was one of negligence, to be resolved by the acts done by Matri, and not by proof of his violent temper or other mental characteristics. So far as the present record discloses, we think its exclusion, if objected to upon that ground, would have been proper. Carlson v. ConnecticutCo.,
10. Matri testified as to firing two shots from his rifle in the air, and a third shot aimed low at the automobile, and as to where he was when he fired these shots. For the purpose of corroborating Matri's statement, defendant inquired of its witness Burnap as to finding certain empty shells at the reservoir shortly after plaintiff was shot. It appeared in evidence that the shells found were of the same calibre as those used in the rifle by Matri that night, and that the rifle was a magazine rifle from which each used shell was ejected. This evidence was excluded. It ought to have been admitted, as it did tend to corroborate Matri's statement. Commonwealth v.Watson,
Burnap testified as to where Matri said he was when he fired these two shots. Matri's statement was objected to and excluded. The ruling was correct. Matri's statement, made through Burnap, was hearsay.
11. Other exceptions to rulings made in reference to evidence offered to prove that the duty the city was performing was a governmental one, become of no importance in view of our holding that this question did not arise in the case.
The defendant moves to set aside the verdict because the damages awarded are excessive. The jury *599 might have found that the plaintiff was vigorous and in sound health, and in consequence of the injuries she suffered became a helpless invalid for life; that her left limb was amputated just below the left thigh in order to save her life; that she suffered greatly from gunshot gangrene and erysipelas; that she has suffered much pain constantly since the injury, and will always suffer pain, and can expect little physical improvement; that her nerves have been shattered, and she has never recovered from the shock of the injury, and has lost her sense of smell; that she is and will be unable to have the use of her limb, even with the aid of artificial means; that she was forty-one years of age when injured, having an expectation of life of twenty-seven and one half years; that she was earning $40 per week at her occupation, and that she will never hereafter be able to work at her employment; and that she has been under the constant care of physicians since her injury and has expended in the treatment of the injury $1,600.
The damages awarded are unusually large for this jurisdiction, but if the jury found these facts proven — and they reasonably might have done so — we cannot hold the damages awarded to be excessive.
The subject-matter of the motion for a new trial — the improper conduct of counsel during the trial and the improper statements in the argument — should have been included in the appeal. The remedy by way of a new trial is limited to the specified statutory grounds. General Statutes, §§ 5840, 5850. The court incorporated a part of the subject-matter of the motion in its finding.
As to paragraphs seventeen and eighteen of the defendant's proposed finding, which corresponded to paragraphs nine and ten of the motion for a new trial, it made a specific finding. As to the other paragraphs *600 of the motion for a new trial, made a part of defendant's proposed finding, it made no finding, but incorporated in its finding the testimony taken on the hearing on the motion for a new trial relating to these paragraphs. The Superior Court should have found the facts as to this matter. This court cannot find the facts.
Counsel for defendant moved to correct the finding, and filed exceptions as to paragraphs seventeen, eighteen and nineteen of defendant's proposed findings. This motion the court denied. As to the statements made by Mr. Lewis, and that made by Mr. Cassidy in reference to Mr. Brown, as found in said paragraphs seventeen and eighteen, which we think it unnecessary to quote, the court has found that no objection or exception was taken by the defendant to the same prior to its motion for a new trial. Of its own motion the court interrupted Mr. Cassidy's argument and cautioned him, and thereupon he proceeded to another subject. The objections to these statements come too late. This situation does not present such an abuse of an attorney's privilege as to justify our disregarding our general rule: "A party who has full knowledge of improper conduct by his adversary's attorney . . . cannot remain silent and speculate on the chances of a favorable verdict, and afterward be heard to complain when the verdict is unsatisfactory."McKiernan v. Lehmaier,
As to the rest of the motion to correct, it was properly denied, and the exceptions concerning the same are not well taken.
There is no merit in the motion in arrest.
There is error on the appeal and a new trial is ordered.
Dissenting Opinion
The plaintiff alleged that Matri, the guard who fired the shot which wounded the plaintiff, "was not a man qualified or fit to be armed with a dangerous weapon and to act as guard at the reservoir." This allegation the defendant denied. Upon this issue the defendant produced testimony by Matri that he had had some training in the use of firearms and knew how to handle them properly. Thereafter the plaintiff offered the testimony of McNamara for the purpose of showing, as stated in the opinion of the majority of this court, that Matri was "unfit to act as a guard"; or, as stated by counsel who presented the testimony, to show "his qualification as a guard."
I think this testimony was admissible for such purposes. Whatever bearing it might or might not have upon the general character of Matri, or upon any single trait of his character, it seems to me it had a direct and very forcible bearing upon the important matter in question. It tended to show that he had not had the training he claimed to have had, or that in spite of any training he had had, Matri did not then know how to handle a dangerous weapon properly, and that lack of training and knowledge made him unfit or unqualified for the duty the defendant had employed him to perform. In the opinion of the majority, McNamara's testimony is said to be "a species of character evidence." It seems to me that it should not be restricted as character evidence. Matri's mental qualifications, disposition, temper, and judgment may have been unquestionable, and yet, if he did not know and practice the proper use of firearms, he was unfit and unqualified to act as guard armed with a loaded rifle. *602 His fitness and qualifications of that kind were in dispute, and it is conceded that McNamara's testimony was introduced for the purpose of showing that Matri was unfit and unqualified in that respect. Matri's conduct would indicate convincingly whether he had the training, knowledge and practice to fit him "to act as a guard" armed as he was by the defendant. That conduct, of course, must be judged in view of the circumstances. The record discloses that McNamara was inoffensive and had given no cause for suspicion. He had promptly obeyed Matri's order to stop his automobile, had answered Matri's questions civilly and reasonably, and was trying to turn his car to go away from the reservoir. Then Matri advanced closer, raised his loaded gun to his shoulder, and pointed it at McNamara, with the muzzle within four or five feet of his face, and, holding the weapon in that position some minutes, declared that he had a mind to blow out the brains of this unarmed and peaceable citizen. It seems to me that was the conduct of a man who was "unfit to act as a guard" anywhere, at any time, and that, no matter what Matri's character or disposition was, it demonstrated that he was not qualified by training and knowledge to handle a dangerous weapon properly.
The exclusion of the testimony of the witness Burnap, as to finding some empty cartridge shells on the reservoir shortly after the plaintiff was wounded, appears to me to have been justifiable and harmless. In the first place, I think the record shows that Matri had not testified definitely where he was when he fired each of the shots. He had said that he fired three shots while he was walking from near the center of the dam toward the approaching automobile; one, when it was one hundred and fifty feet from the dam, one when it was fifty feet from the dam, and the third when it was *603 on the dam. He thus fixed the locality of the automobile, but not precisely where he was, when he fired any of the three shots. This testimony was brought in by the plaintiff in Matri's direct examination, was repeated and confirmed in his cross-examination at the suggestion of the defendant, and was undisputed. In such a state of this testimony, it hardly seems that any corroboration by the defendant was necessary or profitable. But corroboration was the only purpose for which it was claimed.
But I think it was quite immaterial where Matri stood when he fired any of the shots, which all the witnesses agreed that he fired. The plaintiff and two other witnesses testified that the first shot was the one that took effect, and that the others were fired while the automobile was going away from the dam. On the other hand, Matri claimed that the first two shots were warning shots, fired in the air, and only the third shot was aimed toward the automobile. The plaintiff's testimony was intended to show that Matri was reckless or negligent; Matri's testimony was calculated to prove that he was cautious and reasonable. In considering these conflicting claims, it does not appear that the jury could get any help from knowing exactly where Matri was when he fired any shot. It was admitted that he was on the dam when he saw the automobile approaching from about one hundred and fifty feet from the dam, and that while walking toward the approaching automobile, he fired all three shots within that short range. What the jury should have been concerned in deciding was which of these shots was the aimed shot; that is, whether in fact Matri fired first two warning shots. His precise location within the limits and circumstances he had explained were entirely insignificant. Moreover, the record shows that the rifle Matri was carrying was one from *604 which each used shell was ejected by pulling down a lever; but the record does not contain any evidence tending to show that Matri extracted each shell on the spot where he fired each shot, or that he did not walk some distance from that spot before he threw out the empty shell and reloaded his gun. It seems to me that the material matter in question was not exactly or approximately where Matri stood when he fired any of the three shots, but which one of the shots he aimed toward the automobile; and that to this matter the offered testimony was irrelevant and immaterial and its exclusion harmless. And it seems the more so because Matri's statements concerning his locality were admitted to be true, and any attempt to corroborate them, even if it were practicable and desirable to do so, would be superfluous.
I do not disagree with any statement of law contained in the opinion of the majority of this court, but I am constrained to dissent from its application to the conditions of this case. I do not think the rulings of the trial court which are found erroneous fall within the limits of the law defined in their opinion. For the reasons I have already stated, those rulings appear to me to be justifiable or harmless, and therefore to give no cause for a new trial. *605