Cornwall v. City of Hartford
| Decision Date | 28 February 1928 |
| Citation | 107 Conn. 351,140 A. 723 |
| Court | Connecticut Supreme Court |
| Parties | CORNWALL v. CITY OF HARTFORD. |
Appeal from Court of Common Pleas, Hartford County; Thomas J Molloy, Judge.
Action by Perry W. Cornwall against the City of Hartford to recover damages to automobile alleged to have been caused by negligence of defendant. Demurrer to complaint was sustained and, upon plaintiff's refusing to plead over, judgment was rendered for defendant, and plaintiff appeals. Error and case remanded.
John C Blackall and David R. Woodhouse, both of Hartford, for appellant.
Louis B. Rosenfeld and W. Arthur Countryman, both of Hartford, for appellee.
Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.
The complaint alleges that the plaintiff, while operating his automobile upon a highway under the sanction of statutory regulations and with due care, was run into by an employee of defendant while driving an ash cart. To this complaint the defendant demurred on July 29th, upon the grounds that:
On October 15, following, plaintiff amended his complaint by adding that:
" At said time and for some time previous thereto it was and had been its custom and practice to collect ashes and rubbish from the residences of the inhabitants of the city of Hartford."
Nothing appears of record indicating that the defendant's demurrer was again filed to the amended complaint, or that it elected to stand upon the demurrer already filed. The court sustained the demurrer for the reasons stated therein holding that the removal of ashes was a governmental duty, and plaintiff appeals from this ruling.
On examining the complaint we find no allegation that the driver of this ash cart at the time of the accident was engaged in the removal of ashes, or that he was ever engaged upon work of the defendant.
The parties assume that the point to be decided is whether the collection of ashes and rubbish by the city of Hartford from the residences of the city of Hartford is a governmental function.
That question does not arise upon the allegations of the complaint, and could not arise, in the absence of an allegation showing that the injury arose while the driver was engaged in his employment for the defendant and that the nature of his duty brought it within the rule of immunity because he was engaged in the performance of a governmental duty. Since the complaint fails to allege facts from which the defendant's...
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International Union of Elec., Radio and Mach. Workers, AFL-CIO v. General Elec. Co.
...have been sustained on the first ground, and we need give that ground no further consideration. See cases such as Cornwall v. Hartford, 107 Conn. 351, 353, 140 A. 723. We turn now to the second and third grounds of demurrer. The effect of the demurrer was to admit the material allegations o......
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Fraser v. Henninger
...is not demurrable on the ground that any violation of the duties involved discretionary or supervisory functions. Cornwall v. Hartford, 107 Conn. 351, 352, 140 A. 723; see Hoffman v. Bristol, 113 Conn. 386, 387, 155 A. 499. In the absence of such allegations (which would be admitted by demu......
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Cieszynski v. Franklin Corp.
...of the separate demurrers to the three separate paragraphs is a general demurrer and not special and therefore is bad. Cornwall v. Hartford, 107 Conn. 351, 140 A. 723. In the second place, a demurrer may only be used to test the sufficiency of an entire cause of action or defense and should......
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Turrill v. Erskine
...§ 5507. A trial court should not, in passing upon a demurrer, consider other grounds than those specified. See Cornwall v. Hartford, 107 Conn. 351, 353, 140 A. 723; Foote v. Branford, 109 Conn. 358, 361, 146 A. 723. That aside, in making its ruling the trial court overlooked the fact that t......