64 A.2d 39 (Conn. 1949), United States Fidelity & Guaranty Co. v. Spring Brook Farm Dairy, Inc.

Citation64 A.2d 39, 135 Conn. 294
Opinion JudgeMALTBIE, Chief Justice.
Party NameUNITED STATES FIDELITY & GUARANTY CO. v. SPRING BROOK FARM DAIRY, Inc., et al.
AttorneyJoseph G. Shapiro and James J. A. Daly, both of Bridgeport, for appellant (plaintiff). Carlos A. Richardson and J. Noxon Howard, both of New Brit ain, for appellee (defendant administrator).
Judge PanelBefore MALTBIE, C.J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ. In this opinion the other judges concurred, except DICKENSON, J., who concurred in the result.
Case DateJanuary 07, 1949
CourtSupreme Court of Connecticut

Page 39

64 A.2d 39 (Conn. 1949)

135 Conn. 294

UNITED STATES FIDELITY & GUARANTY CO.

v.

SPRING BROOK FARM DAIRY, Inc., et al.

Supreme Court of Errors of Connecticut.

January 7, 1949

Appeal from Superior Court, Hartford County; Roberts, Judge.

Action by United States Fidelity & Guaranty Company against Spring Brook Farm Dairy, Inc., and another, for declaratory judgment determining whether defendant administrator's decedent was an employee of the named defendant within Workmen's Compensation Act and whether the plaintiff, as the named defendant's liability insurer, could claim immunity from liability in tort in action for wrongful death. From judgment determining rights of the parties in favor of defendant administrator, the plaintiff appeals.

No error.

Page 40

[135 Conn. 295] Joseph G. Shapiro and James J. A. Daly, both of Bridgeport, for appellant (plaintiff).

Carlos A. Richardson and J. Noxon Howard, both of New Brit ain, for appellee (defendant administrator).

Before MALTBIE, C.J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

MALTBIE, Chief Justice.

The complaint in this action for a declaratory judgment alleges the following facts: The plaintiff had issued to the defendant dairy company a policy of insurance covering its liability for bodily injuries caused by accident arising out of the ownership and use of motor vehicles it owned and a policy covering its liability to any of its employees under the Workmen's Compensation Act. Gen.St.1930, § 5223 et seq. The deceased, a thirteen-year-old boy who was accompanying one of [135 Conn. 296] the employees of the dairy company while he was using a truck owned by it in making milk deliveries, fell from the truck and died as the result. The administrator upon the deceased's estate is threatening to bring suit against the dairy company for damages for the death, claiming that the deceased was not its employee within the Workmen's Compensation Act. The plaintiff contends that the deceased was such an employee. It sought a declaratory judgment determining whether or not that was so. The case was claimed for trial to the jury, certain interrogatories were submitted to them and, upon the basis of the answers they made and other facts it found, the trial court adjudged that the deceased was not an employee of the dairy company within the meaning of the Workmen's Compensation Act. From that judgment the plaintiff has appealed.

Page 41

The dairy company filed no pleadings, but the administrator, to whom we shall hereinafter refer as the defendant, filed an answer, and thereafter a claim in the usual form that the case be put on the jury list. Subsequently the plaintiff made a motion that the case be stricken from that list; and in that motion it stated that, while issues of fact might be submitted to the jury as in other actions, it was improper to claim the entire case for the jury. The court denied the motion without filing a memorandum. At the beginning of the trial, over which a judge other than the one who denied the motion presided, the plaintiff made an oral motion that the case be heard by the court without a jury on the ground that no issue distinctly cognizable at law was presented upon the pleadings. The trial court denied the motion, stating that it would abide by the earlier ruling. When the case was tried, the court, instead of submitting the case to the jury [135 Conn. 297] for a general verdict, put to them seven specific interrogatories which they answered.

Before us the plaintiff contends that it had a right to have all the issues in the case tried by the court without a jury and that to submit any of them to the jury constituted error. The constitution provides: ‘ The right of trial by jury shall remain inviolate.’ Const.Conn. Art. I, § 21. Under this provision no party has a constitutional right to a trial by jury of any action not so triable in 1818, when the constitution was adopted. Castle v....

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