Smirnoff v. McNerney

152 A. 399, 112 Conn. 421, 1930 Conn. LEXIS 54
CourtSupreme Court of Connecticut
DecidedDecember 12, 1930
StatusPublished
Cited by21 cases

This text of 152 A. 399 (Smirnoff v. McNerney) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smirnoff v. McNerney, 152 A. 399, 112 Conn. 421, 1930 Conn. LEXIS 54 (Colo. 1930).

Opinion

Maltbie, J.

This action grew out of a collision between two automobiles at a street intersection. The appellant claimed error in certain rulings upon evidence. One of them is the exclusion of the report of the accident made by the defendant Peter McNerney to the commissioner of motor vehicles. McNerney was the driver of the car which was owned by his wife, the other defendant, and was claimed by the plaintiff to be a family car. The report would ordinarily have been admissible against him as a party to the action and against his wife by reason of the agency to make it implied in his being the operator of the car. Ezzo v. Geremiah, 107 Conn. 670, 679, 142 Atl. 461. The basis of its admission as evidence of the facts in issue would be that it was a declaration in the nature of an admission by or on behalf of a party to the action. Upon its exclusion the plaintiff should have asked to have it marked as an exhibit for identification and, that not having been, done, it is not before us. Roberti v. Barbieri, 106 Conn. 539, 543, 136 Atl. 85. We cannot say, therefore, that the statements in it constituted a material admission against the interest of the defendants and hence that its exclusion was prejudicial to the plaintiff.

The other rulings on evidence complained of are not stated in accordance with our practice, which requires that each ruling as to which error is claimed should be stated in a separate paragraph with a sufficient showing of the relevant circumstances so that the question presented may be fairly understood. *423 Practice Book, p. 307, § 6; McIsaac v. Hale, 105 Conn. 249, 251, 135 Atl. 36. However, assuming the situation to be as the plaintiff claims, the trial court committed no error. The plaintiff introduced evidence of the conviction of Peter McNerney some years before of the crime of forgery in order to attack his credibility as a witness. In rebuttal the defendant offered, and the court admitted, evidence of his reputation in the community for truth and veracity. Such evidence is not restricted, as the plaintiff claims, solely to the purpose of rebutting evidence of the same kind admitted to attack the credibility of a witness, but is admissible to support that credibility when it is attacked as here by proof of a prior conviction of crime. The authorities are not in accord on this matter, but both in number and weight they support the rule we have stated. Indeed, much of the contrary reasoning loses its force where the conviction proved has occurred a very considerable time before the trial, because the witness may well have attained and maintained an irreproachable character since its commission, and the party calling him should have the benefit of that fact. It is significant that Wigmore, in his second edition, has added to his former text a statement that the rule we adopt is preferable to the other. 2 Wigmore on Evidence (2d Ed.) § 1106. See cases there cited and particularly Derrick v. Wallace, 217 N. Y. 520, 112 N. E. 440; Gertz v. Fitchburg R. Co., 137 Mass. 77, 78 (opinion by Holmes, J.). We do not understand our own cases of Rogers v. Moore, 10 Conn. 13, and State v. Ward, 49 Conn. 429, 442, to hold to the contrary. Neither presented situations where the general character of a witness for veracity has been attacked.

The plaintiff complains of the failure of the trial court to give a number of its requests to charge. For *424 the most part these requests violated our rule that each such request shall contain a single proposition of law clearly and concisely stated; Practice Book, p. 275, insert; and so far as they were correct the subject-matter of all of them was sufficiently covered by the charge as given.

The appellant complains of two portions of the charge. His contention as to one involves the same principles of law considered above in our discussion of the rulings admitting evidence of the defendant’s reputation for veracity and is disposed of by what we there say. In the other the trial court charged the jury that in order to recover the plaintiff must not only prove negligence of the driver of the defendant’s car which was a proximate cause of the accident but also that neither he nor his own driver was negligent in any way which “substantially or materially contributed to produce” the injuries suffered. It is to the quoted words that the plaintiff addresses his assignment of error. The negligence of a plaintiff which will defeat a recovery is of the same kind and character as the negligence of a defendant which will support a recovery and the test of causal connection which must exist between the negligence and the injuries is the same. Brockett v. Fair Haven & W. R. Co., 73 Conn. 428, 434, 47 Atl. 763; Monroe v. Hartford Street Ry. Co., 76 Conn. 201, 207, 56 Atl. 948; Nehring v. Connecticut Co., 86 Conn. 109, 116, 84 Atl. 301, 524; Radwick v. Goldstein, 90 Conn. 701, 709, 98 Atl. 583; Worden v. Anthony, 101 Conn. 579, 583, 126 Atl. 919. Equally so must be the extent to which, to be effective in law, that negligence must be a factor in producing the injury. In limiting the negligent acts or omissions of a plaintiff which the law will regard in determining his right to recover we have in our opinions used various expressions; thus, we have said that such negli *425 gence must “essentially” contribute to bring about the injury; Clarke v. Connecticut Co., 83 Conn. 219, 223, 76 Atl. 523; Nehring v. Connecticut Co., supra, 115; must “materially” contribute to that result; Longstean v. McCaffrey’s Sons, 95 Conn. 486, 495, 111 Atl. 788; Gilstein v. Hartford, 100 Conn. 279, 280, 123 Atl. 435; must “materially or essentially” contribute; Coogan v. Aeolian Co., 87 Conn. 149, 156, 87 Atl. 563 ; Andrews v. Dougherty, 96 Conn. 40, 46, 112 Atl. 700; Hawkins v. Garford Trucking Co., Inc., 96 Conn. 337, 339, 114 Atl. 94; De Lucia v. Polio, 107 Conn. 437, 438, 140 Atl. 733; must “essentially and materially” contribute; Schuster v. Johnson, 108 Conn. 704, 706, 145 Atl. 29; must “materially, essentially and directly” contribute; Stickney v. Epstein, 100 Conn. 170, 175, 123 Atl. 1; Morro v. Brockett, 109 Conn. 87, 90, 145 Atl. 659; must “directly and materially” contribute; De Lucia v. Polio, supra, 439; must “essentially contribute in any measure or degree.” Walker v. New Haven Hotel Co., 95 Conn. 231, 238, 111 Atl. 59.

A casual reading of these various expressions might suggest that they were intended to convey different conceptions of the principle sought to be stated. This of course is not so.

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Bluebook (online)
152 A. 399, 112 Conn. 421, 1930 Conn. LEXIS 54, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smirnoff-v-mcnerney-conn-1930.