Jordan v. Apter ( 1919 )

The appeal claims certain corrections in the finding; assigns error in the rulings of the court upon the question of negligence, in the rendition of a judgment in favor of the plaintiff, and in the assessment of damages. The defendant contends that there are material variances between the allegations of negligence and the evidence offered in support of them. The complaint, although loosely drawn, states facts which constitute a good cause of action. It also appears that the allegations set forth in the complaint are broad enough, in the absence of objection, to warrant the admission in evidence of all the facts found by the trial court. Therefore there was no material variance. Moreover, there was no motion made that the complaint be made more specific, or any objection raised as to the admission of the plaintiff's testimony. The defendant, after contesting the case upon its merits, without objection or protest, cannot now maintain that it appears that there are material variances between allegations and proof.

The trial court has found from the evidence that the plaintiff at the time of the alleged injury was in the exercise of due care, and that his injuries were sustained by the negligence of the defendant. The defendant contends that neither of these conclusions are warranted by the evidence, which is now before us, and we are asked to correct the finding so that it shall express directly opposite conclusions. This we cannot do, as the record discloses that there was evidence from which the trial court could have fairly reached the conclusions complained of. The same considerations apply with equal force to all of the exceptions made by the defendant as to the finding of facts as made. The testimony as to all of these matters was conflicting, and it clearly appears that the trial court might reasonably have reached the conclusions which it adopted.

Several assignments of error are not supported by the record. They all relate to alleged refusals to find as requested. An examination of the record discloses that not one of these alleged facts is set forth in the defendant's proposed finding of facts. It necessarily follows that we have nothing to consider upon this branch of the case.

We find nothing in the record to justify the defendant's claim that the damages awarded by the trial court are excessive. The plaintiff when injured was earning $30 a month and his board. The injuries which he sustained were occasioned by being knocked down and dragged a distance of between forty and fifty feet by the defendant's automobile. The testimony offered in his behalf was to the effect that the injuries which he sustained to his face, shoulders, fingers and legs were of a serious and permanent nature. It appears that after he was released from the automobile he was immediately taken to a hospital, where he remained about five weeks under treatment, and that he was unable to work for more than four months after the accident. Upon his direct examination upon the trial of the case, which took place more than three years after he was injured, the plaintiff in part testified: "Q. Whereabouts were you hit? Have you any marks? A. Yes, I have some marks. My shoulder here, — anybody can see that. Q. What is the matter with your shoulder? A. It is broken, there's a big bunch growing there — where it fell in. . . . Q. Does it annoy you? A. Yes, it annoys me all the time, I can't sleep nights with it. I have three fingers pretty near disabled, hardly able to use them; my leg was all used up — fractured; and the side of my face where I was dragged on the street, it is all marked. Q. Are those marks on the face the result of the — A. Yes, I was dragged on the street. . . . Q. Now I would like to have you show your fingers that were hurt to his Honor. Stand up and show just where you were hurt — show the injuries on your face. A. It was all from being dragged along. Then there is a big bunch growing here, the bone is growing out, growing larger and larger every day. . . . Q. Mr. Jordan, do these injuries bother you at the present time? A. Yes." From this and other testimony offered by the plaintiff, we do not think that the amount of $2,000 awarded as damages is so excessive as to justify this court in setting it aside.

The defendant has made an application to rectify the appeal under General Statutes, § 5835. The matter which the appellant has asked us to rectify relates to the alleged admission of a document purporting to be a record of the Hartford hospital, where the plaintiff was taken after he was injured. This record purports to contain a history of the plaintiff's case, the manner in which he was injured, and also a description of the nature and extent of his injuries. It was produced by the superintendent of the hospital, who stated that the record was made in the usual course of business or practice of the hospital. This witness also testified as follows: "Q. When a man is brought to the hospital in a more or less unconscious state by another party, don't they take the history of the case from the man who brings him? A. I should think if the patient himself were not able to give a statement they would take it from the other man or any other source from which they could. Q. It may have been given by Apter himself? A. I don't know, I wouldn't say one way or the other. Q. You weren't in the hospital at the time this man was admitted. A. No, sir. Q. You don't know whose handwriting this is? A. No. Q. You don't know who made the statement? A. No."

Admitting that the statements set forth in this document were properly before this court, it could not have any legitimate bearing upon the decision of the case as it now appears to us. This record was not competent to prove the existence of any fact therein stated. Hearsay evidence is never competent to prove the existence of facts, except in particular and exceptional cases which have no relation to the question now before us. It does not appear that this record was made or kept in accordance with any requirement of law, neither is it shown by whom these statements were made or who entered them upon the records of the hospital. Such testimony is plainly incompetent, and it could serve no useful purpose if before this court. 4 Chamberlayne on Evidence, pages 3794-3796, and cases cited in notes; 1 Wharton on Evidence (3d Ed.) § 175; Stephen's Digest of the Law of Evidence (Conn. Notes) Art. 14, Chap. 4. For these reasons the application to rectify the appeal is denied.

There is no error.

In this opinion the other judges concurred.