314 A.2d 785 (Conn.Cir.A.D. 1973), CV 11-6811-3867, Walker v. Kelly

Docket Nº:CV 11-6811-3867.
Citation:314 A.2d 785, 6 Conn.Cir.Ct. 715
Opinion Judge:DEARINGTON, Judge. In this opinion KINMONTH, J., concurred. JACOBS, Judge (concurring).
Party Name:Michael WALKER v. Hobart W. KELLY et al.
Attorney:Norman E. Whitney, Hartford, for appellant (plaintiff). James A. Kane, Jr., Hartford, for appellees (defendants).
Judge Panel:JACOBS, Judge (concurring). In this opinion KINMONTH, J., concurred. DEARINGTON,
Case Date:April 27, 1973
Court:Circuit Court of Connecticut

Page 785

314 A.2d 785 (Conn.Cir.A.D. 1973)

6 Conn.Cir.Ct. 715

Michael WALKER

v.

Hobart W. KELLY et al.

No. CV 11-6811-3867.

Circuit Court of Connecticut, Appellate Division.

April 27, 1973

Argued March 5, 1973.

Page 786

[6 Conn.Cir.Ct. 716] 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 [6 Conn.Cir.Ct. 717] 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,

Page 787

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...

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