Brockett v. Jensen

Decision Date13 December 1966
Citation225 A.2d 190,154 Conn. 328
CourtConnecticut Supreme Court
PartiesVirginia BROCKETT v. Ruth E. JENSEN et al. Robert TREALOR v. Ruth E. JENSEN et al.

Vincent Villano, New Haven, and Thomas F. Brown, West Haven, for appellants (defendants).

Charles L. Flynn, New Haven, for appellee (plaintiff) in the first case.

Alphonse C. Fasano, New Haven, with whom, on the brief, was John F. Cipriano, New Haven, for appellee (plaintiff) in the second case.


RYAN, Associate Justice.

The plaintiffs, Virginia Brockett and Robert Trealor, while passengers in an automobile registered in the name of the defendant Mrs. Ruth E. Jensen and operated in the town of North Haven by her son, the defendant Allen R. Jensen, were injured when the car left the road and struck a pole. The trial court found the issues for the plaintiffs against both defendants.

The defendants seek to have added to the finding a number of paragraphs of the draft finding on the ground that the facts stated in them were admitted or undisputed. Where the finding fails to include admitted or undisputed facts, this court has the power to correct it. Morrone v. Jose, 153 Conn. 275, 277, 216 A.2d 196; National Broadcasting Co. v. Rose, 153 Conn. 219, 223, 215 A.2d 123. 'To secure an addition on this ground, it is necessary for an appellant to point to some part of the appendix, the pleadings, or an exhibit properly before us, which discloses that the appellee admitted that the fact in question was true or that its truth was conceded to be undisputed. Maltbie, Conn.App.Proc., § 158. That a fact was testified to and not directly contradicted by another witness is wholly insufficient. Ibid.; Practice Book (1951) § 397 (now Practice Book, 1963, § 628(a)). The trier is the judge of the credibility of witnesses. Banks v. Adelman, 144 Conn. 176, 179, 128 A.2d 534, and cases cited therein. A further requirement for such an addition to the finding is that the particular portion of the appendix, pleadings or exhibit, as the case may be, relied upon as requiring the addition, be pointed out in the appellant's brief. Maltbie, op. cit., § 328.' Brown v. Connecticut Light & Power Co., 145 Conn. 290, 293, 141 A.2d 634, 636; Solari v. Seperak, 154 Conn. --, 224 A.2d 529. The defendants failed to establish any failure on the part of the trial court to include any paragraphs which were admitted or undisputed.

The defendants seek to eliminate from the finding certain paragraphs on the ground that they were found without evidence. An examination of the appendices indicates that the facts found by the court were fully supported by the evidence or were reasonable and logical inferences drawn from facts proved. Bruce v. McElhannon, 141 Conn. 44, 48, 103 A.2d 335.

The defendants assign error in the conclusions reached by the court that Allen 'operated said car in a negligent manner on Maple Avenue in North Haven, causing a collision with a telephone pole and bringing about the injuries to the plaintiffs Virginia Brockett and Robert Trealor.' 'The court's conclusions are to be tested by the finding and not by the evidence. Davis v. Margolis, 107 Conn. 417, 422, 140 A. 823; City Bank & Trust Co. v. Ruthinian Greek Catholic Church, 102 Conn. 609, 611, 129 A. 785'. Klahr v. Kostopoulos, 138 Conn. 653, 655, 88 A.2d 332, 333.

The court found the following facts pertaining to this conclusion: Virginia and Trealor were riding in the rear seat of the Jensen car on the evening of March 9, 1957. Allen was driving the car north on Maple Avenue, a wet road, and it was dark and raining. There was a curve on Maple Avenue about 150 feet north of the entrance to the North Haven High School, which curve continued to the left of one traveling north for a distance of 300 feet. There were street lights in the area, a blinker light in front of the entrance to the school and signs reading 'Slow, School' painted in the roadway 400 feet south of where the curve began. The posted speed limit at the entrance to the school was twenty-five miles per hour, and, at the place where the car was found, it was thirty-five miles per hour. When the car reached the blinker light in front of the school, it was going forty-five to fifty miles per hour, and Trealor told Allen to slow down because there was a curve ahead. Allen did not slow down, and, about 100 feet past the blinker light, the car started to slide. Neither Virginia nor Trealor remembered what happened after that. The car failed to negotiate the curve and was found lying on its right side near a telephone pole. The roof of the automobile was dented in, the entire right side was scraped, and the left rear fender was damaged. The car was lying almost crossways in the northbound lane, north of the pole, which also showed damage. Solid skid marks forty-seven feet and ten inches long extended northerly from the traveled portion of the highway to a point five feet off the shoulder. Any skid marks on the traveled portion of the highway could not be seen because it was wet, but skid marks were visible on the shoulder of the road because the shoulder was sandy and had loose material on it. After, or at the end of the skidding, the car tipped over on its right side and struck the telephone pole, which was nine feet and ten inches from the edge of the traveled portion of the highway, with such force that the pole was moved in the ground. The car came to rest with its front end fourteen feet from the pole and its rear seventeen feet and one inch from the pole.

The conclusions of the court that Allen was negligent and that his negligence was a proximate cause of the injuries to the plaintiffs are amply supported by the finding of subordinate facts. They are legally and logically consistent with the facts found and do not involve the application of any erroneous rule of law material to the case. Yale v. Benneson, 147 Conn. 254, 255, 159 A.2d 169.

The defendants also assign error in the conclusions reached by the court that Mrs. Jensen was the owner of the 1952 Chevrolet at the time of the accident and that Allen was operating the car at this time with her general authority and permission to do so. The issue of ownership of the car is of importance in the determination whether the court was correct in applying the family car doctrine in finding liability as against Mrs. Jensen. A special defense of res judicata was pleaded in both cases, alleging that the factual issue of the ownership of the car by Mrs. Jensen had been judicially determined in the case of Jensen v. Nationwide Mutual Ins. Co., 150 Conn. 56, 185 A.2d 77; A-412 Rec. & Briefs, back of p. 233. In the Trealor case, the plaintiff demurred to this defense on the ground that the parties in the action between Mrs. Jensen and the Nationwide Insurance Company were not the same parties as in the instant action. The demurrer was sustained in the court below. In the Brockett case, no demurrer was filed to this defense, but the trial court determined the issue for the plaintiff.

The court found the following facts relating to the ownership of the car: About one week before March 9, 1957, Allen, a minor twenty years old, went to Munson Motors to look at a 1952 Chevrolet sedan before he spoke to either of his parents about it. The location of his work was such that he required an automobile for transportation. He picked out the car and paid $25 down on it. His mother was not present at this time, but he went home, got his mother, went back to Munson Motors and bought the car. The automobile was paid for with money taken from Allen's bank account, which he had saved from his earnings. The car was bought in Mrs. Jensen's name and was registered in her name because Allen was a minor. It was bought only for Allen's use and was used by Allen for both pleasure and work. On the evening of March 9, 1957, Allen was operating the car with the general permission and authority of his mother. Prior to the accident, he had driven the car for about one week for work and pleasure. He did not need his mother's permission every time he drove the car. Mrs. Jensen applied for assigned risk insurance on the automobile in Allen's name with Roy A. Cook, an insurance agent. This insurance policy came Allen's name on the Monday following the accident. Before the automobile involved in the accident was purchased, Mrs. Jensen owned another automobile insured by the Nationwide Insurance Company. By writ dated May 25, 1957, returnable to the Superior Court at New Haven on the first Tuesday of July, 1957, Virginia, a minor, brought the instant action by her father and next friend, seeking damages for injuries received by her in the accident. By writ dated October 25, 1957, returnable to the Superior Court at New Haven on the first Tuesday of December, 1957, Mrs. Jensen and Allen brought an action against the Nationwide Mutual Insurance Company and Virginia, praying for a declaratory judgment concerning an automobile liability insurance policy issued by Nationwide to Mrs. Jensen on May 1, 1956. Mrs. Jensen and Allen prayed the court to determine whether Nationwide was liable on the policy for damages resulting from the injuries alleged to have been received by Virginia in the present action, which was then pending. The parties appeared by counsel and were heard on the merits by the court. The principal issue of fact to be determined by the court in the action for the declaratory judgment was whether Mrs. Jenson or her son, Allen, owned the 1952 Chevrolet operated by Allen on the date of the accident, March 9, 1957, in order to enable the court to determine whether Mrs. Jensen was entitled to the coverage afforded her by the policy issued to her by Nationwide. The court decided that the real owner of the car at the time of the accident was not Mrs. Jensen, but Allen, and it rendered judgment that Nationwide was not liable on the policy. In the declaratory...

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    ...domain. The court's conclusions are to be tested by the finding. Hutensky v. Avon, 163 Conn. 433, 437, 311 A.2d 92; Brockett v. Jensen, 154 Conn. 328, 331, 225 A.2d 190. The conclusions reached by the court must stand unless they are legally or logically inconsistent with the facts found or......
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