Angier v. Barton

• Decision Date: 29 December 1970
• Citation: Angier v. Barton, 276 A.2d 782, 160 Conn. 204 (Conn. 1970)
• Parties: Viola B. ANGIER, Executrix (ESTATE OF Roswell P. ANGIER II) et al. v. John BARTON (Charles Tackman, Jr., et al., Executors, Substituted Defendants).
• Court: Connecticut Supreme Court

Page 782

276 A.2d 782

160 Conn. 204

Viola B. ANGIER, Executrix (ESTATE OF Roswell P. ANGIER II) et al. v. John BARTON (Charles Tackman, Jr., et al., Executors Substituted Defendants).

Supreme Court of Connecticut.

Dec. 29, 1970.

John W. Barclay, New Haven, with whom, on the brief, was William M. Mack, New Haven, for appellant (plaintiff).

James F. Kenney, Bridgeport, with whom, on the brief, was James P. White, Jr., Bridgeport, for appellees (defendants).

Before ALCORN, C.J., and HOUSE, THIM, RYAN and SHAPIRO, JJ.

THIM, Associate Justice.

By a substituted complaint the plaintiff Viola B. Angier, a resident of Hartford, brought a wrongful death action, seeking to recover damages for the death of her husband, Roswell P. Angier II, in consequence of an explosion of firecrackers, alleged to have been caused by the wilful, wanton, and reckless conduct of John Barton in the state of Arizona. ¹ John Barton died prior to the trial and counsel stipulated in argument that his executors were substituted as defendants. Ann Sprague Barton, the widow of John Barton, was, by order of the court, joined as a party defendant. The defendants, after denying the allegations of wilful, wanton and reckless conduct, alleged, by way of a special defense, that Angier was negligent in several respects and that one or more of his own negligent acts were the proximate cause of his death.

The record in this case is in considerable disorder. While this action was initially brought against John Barton, the record indicates neither his death nor the substitution of the parties defendant. In addition, although John Barton's widow was made a party defendant, she is nowhere mentioned in the substituted complaint, as ordered by the court, and in the verdict form only Barton's executors are named. Counsel stipulated in argument that Barton's widow was dropped as a party defendant. Still further, Viola B. Angier brought this action in her individual capacity and as executrix of Roswell P. Angier II. There are thus, in actuality, two plaintiffs. Paragraph 8 of the complaint, however, notes only that '(p)laintiff is the widow of said decedent.' The remainder of the complaint also speaks in terms of one plaintiff. Finally, the verdict form lists Viola B. Angier in her individual capacity.

In order to reduce the confusion created by the record, we will treat the parties in the same manner as did counsel. Thus we will refer to 'the plaintiff', meaning Viola B. Angier, the widow of Roswell P. Angier II, in her individual capacity. Likewise, we will refer to 'the defendants' meaning the executors of the estate of John Barton.

The case was tried to a jury and a verdict was returned in favor of the defendants. The plaintiff filed a motion to set aside the verdict. The motion was denied. The plaintiff has appealed, claiming error in the denial of her motion to set aside the verdict and in the charge to the jury. The appeal is defective in form because it is taken from the denial of the motion to set aside the verdict rather than from the final judgment. Teitelman v. Bloomstein, 155 Conn. 653, 655, 236 A.2d 900. The defendants, however, by failing to move to dismiss the appeal have waived the defect. Desmarais v. Pinto, 147 Conn. 109, 110, 157 A.2d 596; Van Detti v. Parsons Bros., Inc., 146 Conn. 282, 283, 150 A.2d 200.

The plaintiff offered evidence to prove the following facts: On May 29, 1966, the late John Barton of Stamford, Connecticut, purchased a quantity of firecrackers in Mexico, and on the same day the transported them into this country in violation of § 836 of title 18 of the United States Code. Further, Barton possessed the firecrackers in Arizona in violation of § 36-1602 of the Arizona Revised Statutes (1956). The plaintiff claimed that by failing to remove the firecrackers from his automobile, a station wagon, Barton had wilfully and recklessly abandoned them. On July 3, 1966, the firecrackers were in a terra cotta flowerpot resting on the mantelpiece in the dining room of Barton's home on East Rudasill Road in Tucson. While the plaintiff's husband was one of a group of persons present at the Barton home on July 3, 1966, the firecrackers exploded, resulting in injuries to him. Later the same evening he died from those injuries.

The defendants offered evidence to prove the following: After purchasing the firecrackers in Mexico, Barton placed them in his station wagon and, accompanied by his son, Benjamin, drove back to Tucson. Thereafter, on June 2, 1966, John Barton returned by airplane to his other home in Stamford.

While John Barton was in Tucson he was the only person to use the station wagon. While he was not in Tucson, Barbara Angier, a sister-in-law of the plaintiff's decedent, had the care, control and custody of the station wagon. It was kept in a garage at her home on North Silverbell Street in Tucson where she lived with her husband, Philip H. Angier, a brother of the plaintiff's decedent. Philip and Barbara used the station wagon for their own purposes.

While Philip, accompanied by his brother James Angier, was using the station wagon in Tucson on June 24, 1966, one of its tires became flat. They stopped at a service station to have the spare tire placed on the station wagon. When the service station attendant removed the spare tire the firecrackers were discovered in the bottom of the tire well. Upon returning to Philip's home on North Silverbell Street James took the firecrackers into the Angier residence and placed then in a flowerpot. The firecrackers remained at the Angier residence until July 3, 1966. On that date, at approximately 3:30 p.m., Barbara and Philip Angier took the firecrackers from their home to the Barton residence on East Rudasill Road for the purpose of setting them off as part of a Fourth of July social gathering which they were hosting. John Barton's home was then being occupied by his son, John, Jr., and family. Barbara Angier placed the flowerpot containing the firecrackers on the fireplace mantel in the dining room of the Barton home. The plaintiff's decedent was present, and knew of the presence of the firecrackers and their proposed use.

The plaintiff's decedent had been chainsmoking cigarettes at the gathering. During the course of the evening he went into the dining room to obtain some food. Within a short period of time the firecrackers exploded while the flowerpot was in his hands. The firecrackers could have only been activated by igniting their fuses. John Barton was not in tucson at any time from June 2, 1966, until after July 3, 1966.

The only error pursued on appeal concerns the charge on...