Glens Falls Ins. Co. v. Somers

Decision Date10 November 1959
CourtConnecticut Supreme Court
PartiesGLENS FALLS INSURANCE COMPANY v. Bernard J. SOMERS et al. Supreme Court of Errors of Connecticut

Clarence A. Hadden, New Haven, with whom, on the brief, was Daniel Pouzzner, New Haven, for appellant (plaintiff).

George E. McGoldrick, Meriden, with whom, on the brief, was David W. FitzGerald, Jr., New Haven, for appellee (defendant Battipaglia).

Before BALDWIN, C. J., and KING, MURPHY, MELLITZ and SHEA, JJ.

KING, Associate Justice.

The plaintiff brought this action against Bernard J. Somers and Trofimena Battipaglia, claiming a declaratory judgment and injunctive relief. The complaint alleged that the plaintiff had issued a policy of automobile liability insurance to Anne Somers; that during the period of coverage of the policy a car owned by her and operated by Bernard J. Somers was involved in an accident in which Mrs. Battipaglia, a pedestrian, was injured; that Mrs. Battipaglia brought suit for personal injuries against both Anne and Bernard, claiming that Bernard was operating the car as a family car and as the agent of Anne; that Bernard was not covered by the policy because of a specific indorsement on it excluding him; and that although Anne was not legally liable for any negligence of Bernard the defendants claimed that the policy was applicable to any judgment which Mrs. Battipaglia might recover. The plaintiff concedes that the policy covers any judgment which may be validly rendered against Anne, and she was not made a party defendant in this action. The plaintiff sought (1) a declaratory judgment determining whether under the terms of the policy the plaintiff is obligated to appear and defend the personal injury action on behalf of Bernard; (2) a declaratory judgment determining whether the operation of the car by Bernard was under circumstances such that Anne is legally liable for any negligence on his part; and (3) coercive relief, in the event of an adjudication that Bernard was not covered by the policy and that Anne was not liable for Bernard's negligence, in the form of an injunction restraining the defendants from proceeding against the plaintiff or Anne to collect the amount of any judgment which may be rendered in the personal injury action.

To this complaint each defendant filed what amounted to a general denial. The case was placed on the assignment list for Friday, January 16, 1959. On Tuesday, January 13, subsequent to the assignment of the case for trial (Practice Book, § 133), Mrs. Battipaglia filed a motion to dismiss the second and third claims for relief on the ground that (a) these claims involved the very issues of agency and family car use which were in her personal injury action; (b) the parties to the personal injury action are entitled to have these issues determined by a jury; and (c) their determination in the instant action will serve no useful purpose and will inconvenience her. The court granted the motion but failed to file any note or memorandum disclosing the grounds for its action. The plaintiff appealed from the granting of the motion. The granting of it, although erroneous for reasons hereinafter stated, effectually removed the two claims for relief from the complaint. Mainolfi v. Zoning Board of Appeals, 146 Conn. 634, 636, 153 A.2d 460. In an endeavor to facilitate the disposition of this controversy, we assume, as did the parties, although we in no way decide, that the action of the court in eliminating portions of the claims for relief was a final judgment from which the plaintiff had a right of appeal. Practice Book, § 380; Maltbie, Conn.App.Proc. § 16; Northeastern Gas Transmission Co. v. Brush, 138 Conn. 370, 374, 84 A.2d 681.

It was improper for Mrs. Battipaglia, after having filed an answer, to file a motion to dismiss, or any other motion addressed to the complaint, without seeking approval of the court. Practice Book, §§ 80, 81; Mainolfi v. Zoning Board of Appeals, supra, 146 Conn. 635, 153 A.2d 461. But we cannot overlook the crowded condition of our dockets and, especially, the multitude of motions on which a court is called upon to pass during a single short-calendar session. As far as appears, the court was not informed, at the hearing on the motion to dismiss, that Mrs. Battipaglia had already filed an answer. It was not the duty of the court to search through the file to ascertain whether she had done so and had thereby waived her right to file the motion. It is true that had Mrs. Battipaglia sought permission to file the motion, as required by Practice Book, § 81, the attention of the court necessarily would have been called to the situation and it could have determined whether permission to file should be granted. This case well illustrates the soundness of the rule requiring such permission. It was incumbent, however, on the plaintiff, at the hearing on the motion, to point out to the court the procedural defect. As far as appears, the plaintiff did not do so. Consequently, the question of waiver under § 81 of the Practice Book was neither raised nor passed upon by the court. It follows that no error can be predicated by the plaintiff upon the action of the court in entertaining the motion after the pleadings had been closed. Floyd v. Fruit Industries, Inc., 144 Conn. 659, 667, 136 A.2d 918, 63 A.L.R.2d 1378; Hartlin v. Cody, 144 Conn. 499, 504, 134 A.2d 245; Presta v. Monnier, 145 Conn. 694, 703, 146 A.2d 404.

A motion to dismiss is not a proper vehicle for an attack on the sufficiency of a pleading. Practice...

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22 cases
  • Textron, Inc. v. Wood
    • United States
    • Connecticut Supreme Court
    • December 3, 1974
    ...should be sustained only if rendition of the judgment would constitute an abuse of the court's discretion. Glens Falls Ins. Co. v. Somers, 146 Conn. 708, 713-714, 156 A.2d 146. The defendant did not raise his objection, as he might have done, by way of demurrer, but raised it only at the ti......
  • State v. Anonymous (1973-6)
    • United States
    • Connecticut Superior Court
    • October 1, 1972
    ...points out that such a civil action motion prior to 1972 was proper only in appeals to the Supreme Court); see Glens Falls Ins. Co. v. Somers, 146 Conn. 708, 712, 156 A.2d 146; Connecticut Television, Inc. v. Loughlin, 27 Conn.Sup. 133, 134, 232 A.2d 117; see also Practice Book § 468 (so fa......
  • Burton v. City of Stamford
    • United States
    • Connecticut Court of Appeals
    • June 9, 2009
    ... ...    Applying that standard to the present case, we conclude that it falls within the latter scenario. On December 5, 2006, the defendant appealed ... 20 Schweiger v. Amica Mutual Ins. Co., 110 Conn.App. 736, 955 A.2d 1241, cert. denied, 289 Conn. 955, 961 ... ...
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    • United States
    • Connecticut Supreme Court
    • December 8, 1959
    ...§ 52-29; Practice Book, § 277; Hill v. Wright, 128 Conn. 12, 15, 20 A.2d 388; Maltbie, Conn.App.Proc. § 227; see Glens Falls Ins. Co. v. Somers, 146 Conn. 708, 713, 156 A.2d 146. If the rights and jural relations of parties in the situation of these plaintiffs have been conclusively determi......
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