Richmond v. Norwich , 96 Conn. 582 ( 1921 )

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, 77 Conn. 358, 364, 365,59 A. 487, is conclusive upon this question. Ground four of the demurrer to the complaint in that case raises the precise point, and was overruled, and that ruling upheld, and this accords with the best considered authority.

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, 77 Conn. 358, 59 A. 487, incorporated. This specifies that the superintendent has authority to hire and discharge all labor. Whether the board of water commissioners had authority to authorize the superintendent to employ Matri for the purpose of guarding the reservoir, depends upon whether the charter gives to it this power, and it is, of course, essential that the mode of exercise of the power prescribed be followed. The defendant relies upon the provision, in § 85 of the charter, that the board shall make by-laws or regulations for the preservation, protection and management of the waterworks, and that these shall be binding when approved of by the court of common council. So far as the record discloses, the council have never approved of any such by-laws or regulations. The logic of the defendant's claim would compel the position that the board had no authority to maintain the waterworks, and to provide help in its care and maintenance, except with the approval of the council. But the reading of all of the provisions of the charter shows that the legislature did not contemplate so impracticable a management and operation of the waterworks as this course would involve. Section 79 provides that they "shall be forever maintained by the said board of water commissioners, under the direction of the court of common council of said city, and in the manner provided by the by-laws or ordinances thereof, for, and on behalf of, said city. . . ." The council may direct, but the duty of maintenance is upon the board. In the absence of by-laws or regulations approved of by the council, the board must fulfil its duty of maintenance, for the public service cannot be jeopardized by the failure of the council to approve, or of the board to make, by-laws

In Hourigan v. Norwich, 77 Conn. 358 59, Atl. 487, for the purpose of increasing the water supply, the board of water commissioners were engaged in taking down a bank, when a laborer so employed was injured by the falling bank. In a suit by him to recover damages from the city, we said, on page 363: "The acts charged were done by the defendant city, and none the less so that they were done through the board of water commissioners. The action complained of was the action of the city, and the city was properly made defendant."

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 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. 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, 72 Conn. 675,684, 45 A. 1014; Barber v. International Co., 73 Conn. 587,48 A. 758; Hygeia Distilled Water Co. v. HygeiaIce Co., 70 Conn. 516, 532, 40 A. 534. The record does not show in this instance an abuse of discretion.

8. The ruling admitting the opinion of Funk, over 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.

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, 74 Conn. 257, 50 A. 797, where we said: "A feeling is a fact; and an ultimate fact. If one says that he loves another, he expresses a sentiment existing at the time when he speaks. A judgment is the result of a mental process acting upon prior events. A man may be mistaken in his judgments of others, or of others' acts, — as to what his feelings are towards others he cannot be." In Spencer's Appeal, 77 Conn. 638,643, 60 A. 289, we developed this idea: "Affection may be expressed by acts or words. When expressed by words, the force of the expression may depend less upon the words used than upon the connection in which they were used or the manner in which they were uttered. . . . The precise words which were employed have generally faded from the memory. The impression which they gave may remain, and it is the impression justly to be derived from them which is material. If the facts and conditions giving rise to the impression were either so numerous or so evanescent in character that it seems unlikely that they can be fully set before a jury, it is fully within the discretionary powers of a trial judge to allow a witness to state his impression; leaving it to the cross-examination to elicit the particular grounds for it, should it afterwards be thought worth while to make such an inquiry." Again, in Sallies v. Johnson,85 Conn. 77, 81, 81 A. 974, we said: "A man's love or hatred of another is a fact expressive of his feeling towards such person." The whole range of mental and moral characteristics must necessarily be held, in accordance with these authorities, to be facts, and as such to be proven by whoever knows of their existence. We ought not to allow direct proof of mental and moral characteristics in all classes of cases except those where character is in issue, and as to these prove them exclusively by general reputation.

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, § 1986; 3 Chamberlayne on Evidence, §§ 1901, 1936. In Mathewson v. Mathewson, 81 Vt. 173,185, 69 A. 646, direct evidence from a qualified witness was received that the libellant had a "very wilful, unpleasant and domineering disposition." The court held that when a witness has had personal observation, and the facts that lead the mind to a conclusion are incapable of being so detailed as to enable another to comprehend them, he may add his opinion or the conclusion induced by such observation, and therefore the witness was allowed to add the inference that he had this disposition. In State v.Lee, 22 Minn. 407, 410, the court held: "But evidence of the disposition of a person, by one who knows such disposition from personal observation, is not evidence of opinion in any objectionable sense. It is evidence of fact — just as much evidence of a fact as is evidence of the disposition of a horse." In Sydleman v. Beckwith, 43 Conn. 9, the question admitted was: "From your knowledge of the horse was he in your opinion a safe, kind horse?" JUDGE LOOMIS cites, among a long list of authorities, admitting similar inquiries, "that a horse had a sulky disposition."Whittier v. Franklin, 46 N. H. 23. That direct evidence of the disposition of an animal may be shown, is universally held. We perceive no reason why direct evidence of the disposition of a person should not be as readily admitted as that of an animal; and the court saw no reason for this distinction, for JUDGE LOOMIS, on page 13, says: "Where the disposition of a person or of an animal (as in this case) is to be ascertained, the facts to be proved, being latent, can be ascertained only by symptoms and outward manifestations. If these happen to be very striking they may remain in the memory and can be stated, but in many cases they are very slight in each particular instance, and only the impression of an indefinite number of such appearances remains, resulting in an opinion that the quality or disposition in question exists."

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, 8 Conn. 487, 488,489; State v. Ferguson, 71 Conn. 227, 230, 232,41 A. 769; Verdi v. Donahue, 91 Conn. 448, 454,99 A. 1041; Stow v. Converse, 3 Conn. 325, 345; Swift's Evidence, 143; McKelvey on Evidence (2d Ed.) § 123; 22 Corpus Juris, 481; Colburn v. Marble,196 Mass. 376, 380, 82 N.E. 28; Miller v. Curtis, 158 Mass. 127,131, 32 N.E. 1039. The ruling admitting this evidence was erroneous. It cannot be held to have been harmless; on the contrary, this evidence was quite liable to have had a potent influence in the making of the verdict, as the court in its charge referred to the testimony of McNamara with emphatic detail. The answers to interrogatories one and two show very clearly that this evidence had a material effect upon the answers made.

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., 95 Conn. 724, 112 A. 646.

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, 109 Mass. 354, 355.

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 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 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, 85 Conn. 111, 118,81 A. 969; James v. Bowen, 83 Conn. 702, 707, 78 A. 420;State v. Laudano, 74 Conn. 645, 51 A. 860; State v.Tuller, 34 Conn. 280, 294.

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.