Summary
In Plisko, a negligence action for the death of the plaintiff's decedent, a statement of the decedent was offered as evidence under the dead man's statute.
Summary of this case from Rosales v. LupienOpinion
At the trial of this action by an executrix to recover for the death of her decedent, a portion of a written statement by the decedent as to the circumstances of his fall was excluded from evidence and the balance admitted. The portion excluded said, "If it had not been for the worn slippery nosing of the edge of the stair tread, I would not have hurt my leg." Held: 1. Regardless of whether the decedent could properly have given his opinion on the witness stand if he had been alive and able to testify, the fact that the statement contained an opinion did not rake it inadmissible under the circumstances of this case. 2. The entire statement, including the quoted language, was admissible under 52-172 as a memorandum of a deceased person relevant to the matter in issue. Oral declarations by a decedent may also be admitted in evidence under the statute. Consequently, the court should have allowed the plaintiff to question the investigator who interviewed the decedent as to what the decedent told him was the cause of the fall. But the question "What was it that caused him to fall?" was objectionable as phrased since it called for a conclusion by the witness rather than a declaration by the decedent.
Argued May 3, 1961
Decided July 5, 1961
Action to recover damages for the death of the plaintiff's decedent, alleged to have been caused by the negligence of the defendants, brought to the Superior Court in Fairfield County and tried to the jury before Roberts, J.; verdict and judgment for the defendants and appeal by the plaintiff. Error; new trial.
Theodore I. Koskoff, with whom was Robert R. Petrucelli, for the appellant (plaintiff).
William P. Simon, with whom was Charles A. Watrous, for the appellees (defendants)
The plaintiff's decedent, George A. Knapp, aged seventy-two years, slipped and fell as he was ascending a flight of stairs used in common by the tenants of the first and second floors of a two-family house owned by the defendants. It was the plaintiff's claim that the fall was caused by the defective condition of the stairs and that the injuries aggravated a pre-existing physical ailment and thereby accelerated Knapp's death. The jury returned a verdict for the defendants, and the trial court refused to set it aside. The plaintiff, in her appeal, assigns error in two rulings on evidence and in the charge on contributory negligence.
The plaintiff offered in evidence a written statement which was signed by the decedent and related the circumstances of his fall. The statement had been given to an investigator. The court sustained the defendants' objection to one sentence in the statement, and that sentence was cut out before the statement was admitted in evidence. The sentence to which objection was made read, "If it had not been for the worn slippery nosing of the edge of the stair tread, I would not have hurt my leg." The reason given for the objection was that the sentence contained a conclusion which could not properly have been received in evidence if Knapp had been alive and able to testify. We need not and do not decide whether Knapp could properly have made such a statement on the witness stand, if he had been alive and able to testify, under the rule of cases such as MacLaren v. Bishop, 113 Conn. 312, 314, 155 A. 210, and Stephanofsky v. Hill, 136 Conn. 379, 382, 71 A.2d 560. The entire statement was admissible, under General Statutes 52-172, as a memorandum of a deceased person relevant to the matter in issue. The fact that the statement contains an opinion does not, under the circumstances of this case, make it inadmissible. The statute calls for a liberal interpretation and carries no limitation such as that claimed by the defendants' objection. Walter v. Sperry, 86 Conn. 474, 477, 85 A. 739; Joanis v. Engstrom, 135 Conn. 248, 251, 63 A.2d 151; Graybill v. Plant, 138 Conn. 397, 405, 85 A.2d 238.
Subsequent to the exclusion of the sentence, the investigator who had taken the statement was called to testify to what the decedent had told him about his fall. The investigator, after stating that the decedent had told him what caused him to fall, was asked what the decedent told him. The defendants objected to the question, and the court sustained the objection. This was error. The oral declarations of the deceased person were admissible under the same statute, 52-172, as the written statement. Proceeding further, the investigator was asked, "What was it that caused him to fall?" The court permitted the investigator to answer the question in the absence of the jury and then excluded the answer. The question, as phrased, was objectionable because it called for a conclusion by the witness rather than for a declaration by the decedent, and the court properly excluded it.
The exception which was taken to the charge does not warrant discussion.