Nichols v. New Britain , 77 Conn. 695 ( 1905 )

The complaint alleges, in substance, that the city detained the hack against the plaintiff's will, refused to permit him to take it away, kept it in its own possession and control, and so negligently cared for it that by exposure to the weather it became almost valueless. It further alleges that the hack is still in the possession of the defendant, that the plaintiff has been wholly deprived of its use, and that the hack is of little or no value. The defendant under its notice, filed after the default, denied these allegations.

The salient facts found are the following: In 1901 an epidemic of smallpox broke out in New Britain, and a health committee was appointed by the common council of the city, to whom was committed the "charge over all matters pertaining to treating and checking the epidemic." The committee erected a smallpox hospital, and provided a house of detention situated about a mile from the center of the city, and at a considerable distance from the hospital. The plaintiff, when the epidemic broke out, was "engaged in the hack business" in New Britain. The health committee engaged "the services of the plaintiff as a carrier" to carry parties to and from the hospital, and persons to and from the house of detention, and the plaintiff used for these purposes the hack here in question. To prevent the spread of the disease, the health committee told the plaintiff that he would have to keep the hack used in the transportation of patients, when not in use, in a shed near the house of detention, and he did so for a time. Complaint was made by the policemen on guard at the house of detention "of the hack's being kept" there, and the committee then "ordered the plaintiff to remove it to the isolation hospital," and he did so. There was no shed at the hospital, and the hack left there was exposed to the weather. Thereafter, when it became necessary for the plaintiff to use the hack in the business for which he was engaged by the health committee, he drove his horses to the hospital, attached them to the hack, and after using it in said business returned it to the hospital and left it there. The hack received great injury while kept at the hospital, from exposure to the weather and from patients at the hospital. "The health committee ordered the plaintiff to leave the hack on the premises of the isolation hospital while it was being used for the transportation of smallpox patients, and they would not have permitted it to be removed from said location, except for such use, while it was being used for such transportation. But I do not find that the plaintiff was under any compulsion or obligation to continue to transport patients for the city, nor that he would not have been permitted to remove his hack from said hospital, after proper disinfection, if he had ceased to use it for that purpose. The plaintiff was induced to continue such service and to leave his hack at said hospital by reason of the unusually high compensation paid to him by the city for his services in such transportation. He had made no contract with the city as to the duration of such service, but was called upon from time to time, as such service was required . . . . When said epidemic was over, the health committee caused said hack to be disinfected, and notified the plaintiff that he could remove the same from said hospital; but he did not remove the same, and at the time of the trial it still remained on the grounds of said hospital in a dilapidated condition."

In the memorandum of decision the court has further found that "the plaintiff's hack was not detained by the city against the plaintiff's will, but that, on the contrary, he not only consented to its detention but himself did the acts, the placing of the hack in an exposed location, of which he now complains, having been induced thereto by the hope of making a large profit from his employment by the city."

The evidence certified to this court amply justified the court below in finding the facts as above stated, and upon that finding it was amply justified in rendering judgment for nominal damages only; nor did it err in refusing to correct the finding as claimed upon this appeal.

Two rulings upon evidence remain to be considered. The court finds that after the epidemic was over, the plaintiff urged the city to buy said hack, and procured to be brought before the court of common council a resolution to that effect, which was rejected; also that the plaintiff made no claim to the city for damages for injury to the hack "prior to the bringing of this action." As a part of the evidence tending to prove that the plaintiff had made no claim for damages to the hack prior to bringing suit, the defendant offered in evidence the final bill rendered by the plaintiff to the city, after his employment by it was ended, for his services up to that time, which contained neither charge nor claim of any kind for damages to the hack. The plaintiff objected generally to its admission, but the court allowed it to come in for the purpose for which it was offered.

The failure to assert a claim at a time and place when and where it would be natural and proper to make such assertion, is some evidence, though it may be slight evidence, that the claim was an afterthought. The plaintiff's failure to make a claim for damages to the hack, in his final bill, was in the nature of an admission inconsistent with the claim made in this action, and was admissible against him.Wheeler v. Thomas, 67 Conn. 577, 579.

Upon cross-examination the plaintiff stated that after presenting his final bill, he later sent to the city a bill for injuries to the hack. Against the plaintiff's objection the defendant, by further cross-examination of the plaintiff, was allowed to show, and did show, that what plaintiff meant by the above statement was that he had asked the city to buy the hack, and had introduced before the common council a resolution to that effect, as hereinbefore stated. Both of the above rulings were correct.

There is no error.

In this opinion the other judges concurred.