Summary
In General Hospital Soc. v. New Haven Rendering Co., 79 Conn. 581, 582, 65 A. 1065, the judgment was rendered October 3d, the notice of appeal filed October 9th, the finding filed December 5th, and the appeal filed December 11th, but no bond was filed with the appeal. On December 24th, the time for filing the bond was extended.
Summary of this case from La Croix v. DonovanOpinion
In an action by a hospital to recover for the support and treatment of two of the defendant's workmen, evidence that the plaintiff received a telephone call sent from the office of the defendant and purporting to come from it, asking for the dispatch of an ambulance to its place of business for two men who had been severely burned, is prima facie admissible for any purpose for which a like statement would be admissible if made in the office of the defendant by one apparently in charge as its representative. In answer to the plaintiff's inquiry, the person telephoning stated that the defendant would pay for the treatment of the injured men. Held that this statement was a circumstance which, in connection with others, was admissible as tending to prove a liability upon the part of the defendant not based upon an express promise of the defendant through its agent. A conversation by telephone which is otherwise admissible is not necessarily to be excluded merely because the identity of one of the persons talking is not recognized. Declarations of an alleged agent may be admitted, in the discretion of the trial court, before the fact of agency is established. Evidence admissible for one purpose but not for another will be presumed to have been received only for the legitimate purpose, in the absence of any finding to the contrary; and a general objection to the admission of such evidence is insufficient. An ultimate conclusion of fact will not be reviewed by this court, unless it appears that the trial court, in drawing its inferences from the subordinate facts, has violated the plain rules of reason, or has reached a conclusion which is inconsistent as matter of law with some one or more of the material facts found. The subordinate facts in the present case reviewed and held not to be legally inconsistent with the conclusion or inference drawn therefrom by the trial court.
Argued January 18th, 1907
Decided March 7th, 1907.
ACTION to recover for the support and treatment of two employees of the defendant company at the plaintiff's hospital, brought to and tried by the City Court of New Haven, Mathewson, J.; facts found and judgment rendered for the plaintiff for $162, and appeal by the defendant. No error.
Ernest L. Averill and Alexander Cumming, for the appellant (defendant).
John Q. Tilson and Thomas Hooker, Jr., for the appellee (plaintiff).
In this court the appellee pleaded in abatement, alleging that the defendant's appeal was not filed within ten days after the filing of the trial court's finding, as required by statute. General Statutes, § 791. It appeared by the record that the finding was filed on December 5th, but that the requisite bond was not then given; that on December 24th the defendant filed a motion for an extension of the time for giving the bond, which motion was on the same day heard and allowed by the court and an extension of time for perfecting said appeal granted; and that thereupon, and within the time limited by the court, the defendant filed a sufficient bond and his appeal was then allowed. Held by this court that the plea in abatement was insufficient.
The complaint alleges that the plaintiff furnished support and treatment in its hospital for two patients, at the request of the defendant, of the price and value of $162; that this sum is justly due from the defendant to the plaintiff, and that the defendant has never paid the same. The answer is a general denial. The case was tried to the court.
While the plaintiff was putting in its evidence in chief it produced as a witness one Richard A. Mannel, who testified that he was in the plaintiff's employ and in charge of telephone calls at the hospital, and on June 1st, as agent of the hospital, received a telephone call purporting to be from the defendant company asking for the dispatch of an ambulance to the place of business of the defendant for two men who had been severely burned. The court found that the message was in fact sent from the office of the defendant.
This testimony was plainly admissible. A conversation by telephone between an agent of the plaintiff at its office, with a person in the office of the defendant speaking for the defendant, unaccompanied by evidence that the person speaking for the defendant was authorized to use the defendant's telephone for the purpose of communicating messages from the office of the defendant other than a presumption arising from the use of the defendant's telephone in the defendant's office and the course of business and experience necessarily involved in the use of this instrumentality for communication, is prima facie admissible for any purpose that a conversation with a person at the office of the defendant who is apparently in charge of the office as the defendant's representative would be admissible. Rock Island P. Ry. Co. v. Potter, 36 Ill. App. 590, 592; Reed v. Burlington, C. R. N. Ry. Co., 72 Iowa 166, 33 N.W. 451; Wolfe v. Missouri Pac. Ry. Co., 97 Mo. 473, 481, 11 S.W. 49. The fact that a person in the defendant's office, apparently in charge as its representative, told the plaintiff to send an ambulance, as testified, is a fact relevant to the issues raised by the pleadings. The defendant, however, did not object to this testimony, and it was received by the court without objection.
The witness further testified that he asked who would pay for the treatment of these men, and was informed that the defendant would take care of the expense. The defendant objected to so much of the witness' testimony as stated the answer to the witness' question as to who would pay for the care of the injured men. The court overruled this objection and the defendant excepted. This ruling is assigned as error. The defendant states as grounds for this objection that the plaintiff had not established the identity of the person telephoning, or the place from which the telephone call came.
These grounds are insufficient. As we have seen, the mere fact that the identity of the person telephoning is not recognized does not necessarily exclude a conversation which is in itself admissible. The court finds that the call came from the office of the defendant, and even if evidence of this fact was not received until afterward, which does not clearly appear, that is a matter subject to the discretion of the court. Stirling v. Buckingham, 46 Conn. 461, 463. But the main ground urged in support of the objection is that no evidence had been offered that the person telephoning was the agent of the defendant, and therefore a statement made out of court by that person, that the defendant would pay for the care of the injured men, was inadmissible. The objection thus stated is a general one to the admission of the evidence for all purposes, without specifying any. In such case if the evidence is admissible for one purpose but inadmissible for another, it will be presumed to have been received only for the legitimate purpose, in the absence of any finding to the contrary. State v. Wadsworth, 30 Conn. 55, 56; State v. Glidden, 55 id. 46, 81, 8 A. 890; Hurlbut v. McKone, 55 Conn. 31, 46, 10 A. 164; New England Mfg. Co. v. Starin, 60 Conn. 369, 373, 22 A. 953; Starkey's Appeal, 61 Conn. 199, 202, 23 A. 1081. A statement by a person in the defendant's office, apparently having charge of the office as its representative, is a fact which, in connection with other facts, might tend to prove the liability of the defendant, not as evidence of a promise made by the defendant through its agent, but as one link in a chain of circumstances which establishes a liability in the defendant not founded on its direct promise. The finding indicates that the court admitted the evidence for this legitimate purpose, and its judgment plainly rests on a liability proved by such a chain of circumstances.
The only other error claimed is, that the facts appearing in the finding are so palpably inconsistent with the ultimate conclusion of fact reached by the court as to constitute an error in law. This claim is not very distinctly assigned as error, but perhaps it may fairly be regarded as included in the fourth assignment: "The court erred in finding that the person telephoning to the plaintiff had implied authority to act under the circumstances, and therefore the defendant was liable."
The facts indicated by the finding as supporting the ultimate conclusion of the court, are, in substance, these: The plaintiff is a corporation in the town of New Haven, established by the legislature as a charitable institution for the purpose of carrying on a State hospital; its funds were furnished from private benefactions and from the State's treasury; its members can have no pecuniary interest in its operation; its attending surgeons and physicians are by law required to give their services without compensation; its property to any amount necessary for charitable purposes is by law exempted from taxation; it receives an annual appropriation from the State of $10,000, and by these private and public charities is enabled to care for its patients at a small charge. Of these facts the trial court had judicial knowledge. General Statutes, § 697; 1 Special Laws, p. 343; 7 id. pp. 507, 869; 14 id. pp. 309, 884. The defendant is a corporation located in the adjoining town of Orange, conducting there a hazardous business. On June 1st, 1905, at the defendant's place of business in Orange, two of its men were severely burned, so severely that one needed hospital care for nine days and the other for one hundred and fifty-one days. The officer representing the defendant in the conduct of its business at Orange was temporarily absent. The men were suffering, and in this emergency some one in the defendant's office undertook to act for the defendant, and asked, through the telephone, the plaintiff to dispatch an ambulance immediately to the defendant's place of business to convey two men, who had been severely burned, to the hospital, saying that the defendant would take care of the expense. In response to this summons the hospital ambulance was sent to the defendant's office, and the men were there found to be severely burned and suffering, and were taken immediately to the hospital. The defendant neither through its local manager nor otherwise disclaimed its liability, and took no steps to notify the plaintiff that it repudiated or desired to repudiate the act of the person who, in the emergency of the accident, had assumed to act for the defendant, until after both men were discharged from the hospital. One man was discharged from the hospital in nine days and the other in one hundred and fifty-one days. After the first one was discharged the plaintiff presented to the defendant at its office a bill for his treatment; its representative did not then disclaim responsibility on the part of the company for the care of the men, but said that such matters were attended to at the main office at Boston, and that he would submit the matter to the Boston office. Upon the trial, after the plaintiff had produced its evidence in support of the foregoing facts, the defendant produced no evidence to prove who was in charge of its office and place of business in Orange at the time of the accident, and produced no evidence to prove that the person who, in the emergency of the accident and the suffering of the defendant's servants injured in its hazardous business, had assumed to act for the dedant [defendant] was not clothed with authority to so act. The support, medical and surgical treatment, and nursing, furnished to the patients, was of the value of $7 a week, the sum charged at the hospital, and the support and treatment furnished were necessary and proper.
In view of these facts and of all the inferences the court might properly draw from them in connection with the incidents of the trial, including the failure of the defendant to either disavow knowledge of the sending of the message purporting to be from the company, or to disclaim the authority of the person sending it ( Hull v. Douglass, 79 Conn. 266, 273, 64 A. 351; Wilson v. Griswold, 79 Conn. 18, 63 A. 659), the court reached its ultimate conclusion of fact that the defendant had assumed as its own the assurance of its responsibility for the care of its servant, given from its office to the plaintiff and upon the faith of which the plaintiff had acted, and rendered judgment for the plaintiff.
It does not clearly appear from the finding that in drawing its inferences of fact the trial court has violated the plain rules of reason, or that any fact found is legally inconsistent with the conclusions reached. Owens Pottery Co. v. Turnbull Co., 75 Conn. 628, 631, 54 A. 1122; Hyde v. Mendel, 75 Conn. 140, 143, 52 A. 744; Metcalf v. Central Vermont Ry. Co., 78 Conn. 614, 619, 63 A. 633.