Boiselle v. Rogoff
| Citation | 126 Conn. 635,13 A.2d 753 |
| Court | Supreme Court of Connecticut |
| Decision Date | 08 May 1940 |
| Parties | BOISELLE et al. v. ROGOFF et al. |
Reargument Denied June 26, 1940.
Appeal from Superior Court, New London County; Kenneth Wynne, Judge.
Action by Ellsworth E. Boiselle against Max Rogoff and wife, to recover damages for personal injuries allegedly caused by the negligence of the named defendant, and to set aside alleged fraudulent conveyances, wherein the Southern New England Contractors' Supply Company, which had paid workmen's compensation to the named plaintiff, intervened as a plaintiff. The issue of negligence was tried to the jury, and the issue of fraudulent conveyance was tried to the court. From a verdict and judgment on the issue of the negligence for the plaintiffs against the named defendant, the named defendant appeals, and from judgment on the issue of fraudulent conveyance in favor of the named defendant, the plaintiffs appeal.
Samuel M. Gruskin and Francis F. McGuire, both of New London (Frank L. McGuire and George C. Morgan, both of New London on the brief), for appellant-appellees (defendants).
Arthur T. Keefe and Douglas A. Anello, both of New London, for appellant-appellee (named plaintiff).
Frank E. Dully, of Hartford, for appellant-appellee (plaintiff Southern New England Contractors' Supply Co.).
Argued before MALTBIE, C.J., and AVERY, BROWN, JENNINGS, and ELLS JJ.
This action was brought by the named plaintiff, referred to in this opinion as the plaintiff, against the named defendant, herein referred to as the defendant, and his wife. The plaintiff Southern New England Contractors' Supply Company intervened as the plaintiff's employer which had paid compensation. We consider first the defendant's appeal from the denial of his motion to set aside the verdict for the plaintiffs and also from the judgment in their favor.
On November 24, 1936, the defendant was the proprietor of a gasoline service station in New London and engaged in repairing and mounting automobile truck tires on rims. The plaintiff as an employee of the plaintiff company called that day at the defendant's station to get a heavy truck tire and rim previously left there by the company's employee Buffington to have the tire dismounted, repaired and reassembled on the rim. When the tire was first left and was dismounted the rim was found to be defective, and was taken back to the plaintiff company's place of business. Subsequently it was returned to that of the defendant, and the tire was repaired by him. On the morning of the accident, after the defendant's employee Parker had inflated the reassembled tire on the rim to sixty-five pounds pressure, the defendant in response to the plaintiff's request to help load it onto his truck, was handling the tire in examining it, when suddenly the lock ring flew off and the tube exploded. The ring struck the plaintiff, causing serious injuries. These facts were undisputed.
The plaintiffs' material claims of proof were further that: after the torque lug of the rim was found broken upon dismounting the tire, this defect was remedied and three cracks in the rim discovered by an employee of the company at its place of business, were welded by him, restoring it to good condition; he then returned it to the defendant's station; on the morning of the accident when the plaintiff called for the tire, on the defendant's orders Parker assembled it with the ring on the rim and inflated it; and at that time the tire was not properly mounted and the ring was not securely in place. The material claims of the defendant were that: upon discovering that the rim was defective and unfit for use he discarded it, and forbade Buffington's taking it back to the company's shop lest an attempt be made to repair it and someone be killed in using it again; on the morning of the accident the plaintiff brought the rim and ring to the defendant's place, himself mounted the tire and tube on the rim and inflated the tire with about ten pounds of air; thereupon at his request Parker inspected it, found it was properly mounted and inflated it to sixty-five pounds pressure, this pressure conclusively indicating that the tire had been properly mounted; Parker was in the exercise of due care in the doing of all his work on the tire and rim; the accident was due to defects in the rim and not to anything done by the defendant or Parker; and immediately after the accident, the locking edge of the rim was found to have given way close to the permanent split in it. By their answer to the first interrogatory the jury found that the tire was mounted and the lock ring put in place by either the defendant or his employee.
The question for decision determinative of the defendant's appeal from the judgment, is whether the court erred in charging the jury that they could find that the use by the defendant of a defective rim constituted negligence for which the plaintiffs could recover. This instruction was unwarranted unless the complaint contained allegations that the defendant was negligent in this respect, and unless the plaintiffs offered evidence to prove and claimed to have proved it. The defendant's negligence as a ground of recovery is limited by the specifications in the complaint to: (1) ‘ Negligently * * * causing * * * and allowing compressed air to flow into * * * said tire to an amount and to a greater pressure than said tire could withstand, with the lock rim improperly and inadequately fastened in place’ ; (2) that he ‘ negligently * * * placed the rim upon said tire without securely locking and fastening the same’ ; and (3) ‘ in failing to warn the plaintiff of the attendant danger to which he had subjected him by attempting to deliver a tire inflated to such a degree that its pressure could not be controlled by the careless and negligent manner in which the rim had been placed on said tire.’ Mounting and inflating the tire without properly fastening the lock rim in place, and failing to warn the plaintiff of the danger therefrom, is the extent of the defendant's negligence thus alleged in the complaint. No allegation or even suggestion of negligence in using a defective rim is to be found in it.
The finding makes equally clear that the plaintiffs offered no evidence upon, and made no claim to have proved this as actionable negligence. With regard thereto the charge must be tested by the finding alone. Krowka v. Colt Patent Fire Arm Mfg. Co., 125 Conn. 705, 711, 8 A.2d 5. The only negligence which the plaintiffs claimed to have proved was that ‘ the tire was not properly mounted and the ring, the purpose of which was to keep the tire on the main part of the rim, was not adequately and securely put in place.’ Negligence in using a defective rim as a ground of recovery is specifically negatived by the plaintiffs' further express claim of proof that the rim when the defendant applied the tire to it ‘ was in good, strong and serviceable condition,’ of which the additional claim that after the accident, a tire was mounted ‘ on it with a pressure of about one hundred pounds,’ and it was used ‘ thereafter for about seven thousand miles,’ suggests corroboration.
The court in its charge, after explaining that to inflate and mount the...
To continue reading
Request your trial