Walker v. Kelly

Decision Date27 April 1973
Docket NumberNo. CV,CV
Citation314 A.2d 785,6 Conn.Cir.Ct. 715
CourtCircuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
PartiesMichael WALKER v. Hobart W. KELLY et al. 11-6811-3867.

Norman E. Whitney, Hartford, for appellant (plaintiff).

James A. Kane, Jr., Hartford, for appellees (defendants).

DEARINGTON, Judge.

The plaintiff, on behalf of himself and his minor son, Michael Walker, hereinafter referred to as Michael, brought this action against the defendants, parents of Sharon Kelly, their minor daughter. The plaintiff alleges that Sharon wilfully and maliciously assaulted Michael, causing a laceration over his right eye. The defendants in their answer deny the alleged assault and in a special defense allege that Sharon was five years of age and incapable of acting deliberately, wilfully and maliciously.

The action was brought under § 52-572 of the General Statutes, the pertinent part of which provided that the parents of any unemancipated minor who wilfully or maliciously caused injury to any person shall be liable with such minor for such injury to an amount not exceeding $750 if such minor would have been liable if he had been an adult. 1

The finding, which the plaintiff did not move to correct, recites as follows: Michael and Sharon lived on the same street. Michael was eight years of age and Sharon was five. At the time, Michael was riding his bicycle on the street and Sharon was on the street with other children. On more than one occasion Michael rode his bicycle close to Sharon, and it appeared to her and other children that Michael was trying to run her over. One of the older children, Robert Blinn, twelve years old told Sharon to throw a rock at Michael's bicycle. Sharon threw a rock, intending to hit Michael's bicycle, which at that time was moving fifteen or twenty feet away on the opposite side of the street. The rock struck Michael on the forehead, causing a laceration that required medical treatment.

The court concluded that (1) Sharon did not intend to strike Michael; (2) Sharon was too young and immature to appreciate the risk involved in throwing a rock at Michael's bicycle; (3) Michael's injury was not inflicted wilfully or maliciously.

The plaintiff has assigned error as follows: (1) The court erred in failing to find that Sharon intended to strike Michael; (2) a child of five years of age may be held responsible for acts of violence; (3) Sharon's testimony indicated that she acted wilfully and maliciously.

The plaintiff's first assignment of error attacks the court's first conclusion, not on the ground that it is unsupported by the subordinate facts, but rather on the ground that the court failed in its finding to recite certain evidence favorable to the plaintiff. In short, the plaintiff asks this court, in effect, to correct the finding by including such material. The plaintiff has not challenged the finding by a motion to correct. The rules pertaining to appeals arising in the Circuit Court provide that, '(i)f the appellant desires to have the finding of subordinate facts corrected, he must, within two weeks after receipt of the finding, file his motion for such correction.' Practice Book § 981. If such correction as is requested is not made, the mover may then assign such failure or refusal to correct as error and this court may then 'examine the evidence presented in the motions to correct and as to any finding concerning which error is assigned it may itself correct the finding . . . and . . . may remand the case for further finding.' Practice Book § 985. Thus, the trial court must be afforded an opportunity to correct its finding. Fellenbaum v. Markowski, 4 Conn.Cir. 363, 365, 232 A.2d 515; see Practice Book Forms 818, 819(B)(2). Since, however, the assignment of error is vital to the plaintiff's cause, it will be considered.

It appears from the certified transcript of the evidence that Sharon testified on direct examination when asked to relate what happened: 'A.-Well, I was trying to go over to Lisa Blinn's house and Michael was trying to run me over with the bike and so I picked up a rock and I threw it. I meant to hit him in the fingers but by mistake, I hit him in the head. Q.-Before you threw the rock, Sharon, do you remember Bobby Blinn saying anything? A.-He said that aim . . . 'Throw the rock, but aim for the fingers.' Q.-Did you mean to hit Michael with the rock at all? A.-No.' Thus, we have conflicting testimony from the witness. No further interrogation on this subject was pursued either on direct examination or cross-examination. Perhaps it should be added that Bobby Blinn, referred to by Sharon as the one who suggested that she throw a rock at Michael, testified that he suggested 'to one of the girls (he could not remember which girl; the trial occurred three and one-half years after the incident) that the throw a rock or aim the rock at the bicycle.' This fact is recited in the finding.

Where there is conflicting evidence in the testimony of a witness, it is a function of the trier to accept the testimony which is believed. '(T)he trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony. . . . 'A trier's . . . use of the testimony of a witness on some points does not preclude its rejection on others." Humphrey v. Argraves, 145 Conn. 350, 355, 143 A.2d 432, 434; State v. Magoon, 156 Conn. 328, 333, 240 A.2d 853; see Practice Book § 985. It cannot be said that the court erred in its finding in that it accepted part of the testimony of Sharon and rejected other portions where the evidence was conflicting. The trial court is in a far better position than an appellate court to evaluate the testimony of a witness-from observation of the witness, from the surrounding circumstances, and from a consideration of the entire evidence. Especially is this so where, as here, the witness is of tender years. The court's conclusion that Sharon did not intend to strike Michael was warranted on the facts found.

The plaintiff has further assigned error in the court's conclusion that Sharon was too young and immature to appreciate the risk involved in throwing a rock at Michael's bicycle. This assignment will be discussed together with the plaintiff's final assignment, that is, whether Sharon's act was wilful or malicious, since the statute provides that the injury, if damages are recoverable, must result from a wilful or malicious act.

Ordinarily, tort liability attaches regardless of age where the nature of the act is such that children of a like age would realized its injurious consequences. 42 Am.Jur.2d, Infants, § 141, and cases cited. 'However, where a tort requires a particular state of mind, and an infant because of his age or mental capacity, is incapable of forming such state of mind, he cannot be found guilty of the tort. Accordingly, although an infant of quite tender years may be held liable where the only intention necessary to the commission of a tort is the intention to perform the physical act in...

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  • Hanks v. Booth
    • United States
    • Kansas Supreme Court
    • October 31, 1986
    ...628 S.W.2d 301. Accord Motorists Mut. Ins. Co. v. Bill, 56 Ohio St.2d 258, 10 Ohio Op.3d 398, 383 N.E.2d 880 (1978); Walker v. Kelly, 6 Conn.Cir. 715, 314 A.2d 785 (1973); and Connors v. Pantano, 165 Neb. 515, 86 N.W.2d 367 We agree with the Court of Appeals' interpretation and application ......

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