Palmer v. Hartford Dredging Co. , 73 Conn. 182 ( 1900 )

The plaintiff had but one cause of action and should have stated that in a single count; there was not the slightest necessity for stating it in four separate counts.Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co.,63 Conn. 551; Goodrich v. Stanton, 71 id. 418, 424; Brown v. Wilcox, 73 id. 100.

The first count alleged that the plaintiff was the owner and in possession of certain described oyster-grounds in Stamford harbor, but did not allege that they had been lawfully designated by the proper authority; and mainly for failing to allege such designation the defendant demurred. We think the count was not defective in this respect, as against a mere wrong-doer such as it alleged the defendant to be, and that the demurrer was properly overruled. Besides this, the complaint was subsequently amended in such a way as to fully obviate the objections raised by the demurrer, and the ruling upon it, under the circumstances of this case, did the defendant no harm and cannot avail him for the purposes of a new trial. Boyle v. McWilliams, 69 Conn. 201, 205.

During the trial the plaintiff made certain claims as to the extent of the damages, which the court did not finally sustain, and in support of these claims the plaintiff offered certain evidence which the court admitted over the defendant's objections. As the evidence thus objected to was confined strictly to these claims of the plaintiff which were not sustained eventually, its admission did the defendant no harm; and this makes it unnecessary to consider or discuss the specific rulings thus objected to by the defendant.

It will be convenient here to dispose of the other claimed errors in the rulings upon evidence.

A witness for the defendant refreshed his memory from a writing made by himself, and then testified fully from memory alone. The defendant then offered the writing itself in evidence to corroborate the oral evidence of the witness, and the court excluded it. This ruling was correct, unless the writing was admissible in corroboration, as claimed. Where a writing does in truth refresh the memory of a witness, and he can and does testify fully from memory, the general rule is that the writing itself is not admissible in evidence.Acklen v. Hickman, 63 Ala. 494; Vicksburg M. Railroad v. O'Brien, 119 U.S. 99; Kelsea v. Fletcher, 48 N. H. 282;Erie Preserving Co. v. Miller, 52 Conn. 444. It does not appear to have possessed the requisites of original evidence, under the rule laid down in Curtis v. Bradley, 65 Conn. 99, as claimed by the defendant. That applies specially to cases where the writing fails to refresh the memory of witnesses. Here the writing was not claimed as evidence in itself, but only as evidence in corroboration; its exclusion on that ground could not have injured the defendant. It was not admissible in corroboration. Assuming that it contained statements previously made by the witness consistent with his oral evidence, the general rule is that a party cannot strengthen the testimony of his own witness by showing that he has made previous statements to the same effect as his testimony; and the case at bar, upon the point here in question, does not fall within any of the exceptions to that general rule. Deshon v. Merchants' Ins. Co., 11 Met. 199, 209; 1 Greenl. on Ev. (16th ed.) § 469b.

Witnesses for the defendant were asked by it: (1) what the duties of the dumping inspector were; and (2) whether the defendant, in loading and in transporting the scows, obeyed the directions of such inspector. The court excluded these questions. The questions were immaterial and the ruling was correct.

The court failed to find that a witness for the defendant was qualified as an expert to answer certain questions, and excluded the questions put to him on that ground. The record does not show that the court erred in so doing.

The superintendent of the defendant, who was a witness for it, was asked by it what was the condition of the bottom of the scow in the spring of 1896, and the court excluded the question. After changes in the pleadings this matter was fully gone into in depositions. Whether right or wrong, the ruling did the defendant no harm.

The defendant claimed, in effect, that the leak in the scow was caused by striking a rock while on her course to the dumping-ground, and a witness for the plaintiff, against the defendant's objection, was allowed to testify that there was no rock which the scow could have struck while sailing over that course. This ruling was correct.

A witness for the plaintiff testified that at the request of the captain of the defendant's tug he asked the captain of the defendant's dredge, on the morning of the accident, to have the water in the scow siphoned out. He was asked to give the conversation he had subsequently with the captain of the dredge. The evidence called for tended to rebut the evidence given by said captains for the defendant. The court, against the defendant's objection, admitted the evidence. We discover no error in this ruling.

These are all the rulings upon evidence of which the defendant complains and neither singly nor together do they furnish any ground for a new trial.

The reasons of appeal founded upon the action of the court in overruling certain claims of law made by the defendant, remain to be considered. Very many of these are founded upon the claim that the negligence found, and upon which the judgment rests, is not the negligence alleged in the complaint. To this claim there are two conclusive answers: (1) that it is not true; (2) that if it were true, the defendant, under the circumstances of this case, cannot avail himself of it. The negligence found is, in substance, the use of a scow which was in fact unfit for the use to which it was put, and which the defendant, in law, knew to be unfit for such use, and which it, in law, knew would be likely, if used, to cause damage to the oyster-beds in the harbor. This negligence is we think substantially and sufficiently alleged in the complaint.Bunnell v. Berlin Iron Bridge Co., 66 Conn. 24. But if this were not so, these technical objections of the defendant, after a default and a full and fair trial under our practice of the entire case, come too late and will not avail the defendant for any purpose. Broughel v. Southern NewEng. Tel. Co., 72 Conn. 617, 627; Bunnell v. Berlin IronBridge Co., supra.

The defendant further claimed that the right of navigation was paramount to that of the cultivation of oysters in Long Island Sound, and that it was the right of the defendant to save the scow in the manner adopted by it "irrespective of antecedent acts of negligence or of the prior leaky condition of the scow." The court did hold that the rights of navigation were paramount to the rights of owners of oyster-beds, but held that upon the facts found the defendant was liable for the damage caused by its negligence. It was not called upon to decide whether the above claim, as an abstract proposition, was correct or not, and it did not decide that question one way or the other.

The defendant further claimed that the measure of damages was "that of the rental value of the land the use of which the plaintiff was deprived of during the period intervening before the next planting season, and the market value of the oysters as they then existed upon the ground as a growing crop." The court found that the mud killed 900 bushels of three year old seed oysters on the land where the mud was deposited, worth sixty cents per bushel on the ground, and gave judgment simply for such damage; and of this the defendant has no reason to complain.

The remaining claims of law are to the effect that there "was no legal data for determining the legal measure of damages, before the court." The record fails to show any foundation for this claim.

In the last reason of appeal it is implied that the court permitted the plaintiff to file the fourth count after the trial and arguments in said cause. It is enough to say that this implication is contradicted by the record, and is therefore of no legal significance.

There is no error.

In this opinion the other judges concurred.