Sayles v. Fitzgerald , 72 Conn. 391 ( 1899 )

Under Rule III, § 1, of Rules Under the Practice Act, the plaintiff in an action to recover for goods sold by his salesmen, or labor performed by his workmen, in the ordinary manner of such business, would not be required to state in his complaint that he had acted by such agents. But physicians do not send agents to perform professional services of the kind described in the complaint, and in an action for such services, which have been rendered by another physician provided by the plaintiff, that fact should be stated in the complaint, in order to fairly apprise the defendant of what is intended to be proved. The court erred in permitting proof, against the defendant's objection, that Dr. Lamb attended to the plaintiff's patients during the latter's absence on certain days named in the bill of particulars.

To test the correctness of the statement of Dr. Lamb upon his direct examination as to the reasonableness of the plaintiff's charges, the defendant should have been permitted on cross-examination to ask him whether his own charges for the same services were reasonable, and what those charges were.

The court erred in striking out the testimony of the stenographer, Doty. It tended to prove that upon the trial of another case the plaintiff had testified that he had no such account book as that produced by him on the trial of this case.

The testimony of the defendant to the effect that the plaintiff offered to pay him if he, as executor, would allow his claim, was clearly admissible as tending to prove that the plaintiff's claim was not an honest one, and as impeaching the plaintiff's testimony. The reason for the exclusion of this, and of some of the other evidence offered by the defendant, seems to have been a misapprehension by the court of the effect of the defendant's answer that he had no knowledge or information sufficient to form a belief as to the truth of the allegations of the first paragraph of the complaint. The court apparently treated it as so far an admission of the truth of the statements of that paragraph as to preclude the defendant from offering any evidence to contradict them.

Because the defendant cannot in good faith deny the allegations of the complaint, he is not required to admit them. It is intended that he should admit those allegations which he knows to be true, or which, having knowledge or information sufficient to form a belief, he does not believe to be untrue.Greenthal v. Lincoln, Seyms Co., 67 Conn. 372, 377. It is because he can properly neither admit nor deny allegations concerning which he has no actual or presumptive knowledge, that the defendant is permitted to aver the want of such knowledge. When want of knowledge or information sufficient to form a belief is a proper answer, it subjects the plaintiff to the same burden of proving, and gives to the defendant the same right of controverting, the allegations to which it applies, as would a denial. Bliss on Code Pl. § 326;Newtown Savings Bank v. Lawrence, 71 Conn. 358, 362.

After the defendant had testified that the deceased, shortly before his death, told him that he owed no one but Mrs. Butcher, and on cross-examination had admitted that several other bills had been presented and that they had been paid by him, he should have been allowed to explain that he compromised these claims rather than subject the estate to the expense of litigation.

The questions asked by defendant's counsel of the witness O'Connor for the purpose of showing that the cellar, from its condition and contents, was an unfit place for the performance of the surgical operation in question, were improperly excluded. They were pertinent to the question of the reasonableness of the plaintiff's charge for services on that occasion.

Upon the cross-examination of this witness he denied that he had been discharged from the plaintiff's service for drunkenness. Thereupon, to impeach his testimony that he had seen the deceased pay money to the plaintiff, the latter testified that he discharged O'Connor from his employ for drunkenness, and on cross-examination said that O'Connor was repeatedly intoxicated while in his service. As the cross-examination in which this last statement was made was relevant to the plaintiff's direct testimony that he had for that reason discharged O'Connor, it was competent for the defendant to recall O'Connor to contradict it, notwithstanding that O'Connor had already testified that he was not discharged for drunkenness, and the questions asked him for that purpose should have been permitted.

There is error and a new trial is granted.

In this opinion the other judges concurred.