Denos v. Giovanelli

• Decision Date: 30 June 1938
• Citation: 124 Conn. 464,200 A. 573
• Court: Connecticut Supreme Court
• Parties: DENOS v. GIOVANELLI et al.

200 A. 573

124 Conn. 464

DENOS v. GIOVANELLI et al.

Supreme Court of Errors of Connecticut.

June 30, 1938

Appeal from Superior Court, New Haven County; Robert L. Munger Judge.

Action by Andrew Denos against Eugene Giovanelli and others for injuries allegedly caused by defendants' negligence when plaintiff was struck by a truck allegedly owned by defendants. From a judgment for plaintiff after trial by the court, named defendant and defendant Amelia Giovanelli appeal.

No error.

Jeremiah D. Shea, John Clark FitzGerald, and David E FitzGerald, Jr., all of New Haven, for appellants.

Benjamin Krevit, of New Haven, for appellee.

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS, JJ.

AVERY, Judge.

Luigi and Amelia Giovanelli are husband and wife and live at 63 Terrace Avenue in West Haven with their sons, Evio, Eugene and Lawrence. On the morning of April 6th, 1937, Eugene took a Dodge truck from a garage on the premises and backed into the avenue. He then turned the truck to the east facing Campbell Avenue and parked it on the side of the road near the gutter while he went into the house for breakfast. While the truck was so parked the plaintiff left his home to the west of defendants' house and walked down Terrace Avenue toward Campbell Avenue, where he intended to take a trolley to go to his day's work. There is a sharp descent toward Campbell Avenue from the place where the truck was parked. While the plaintiff was walking nearly in the center of the road, the truck of its own motion, with no one therein, went down the hill and struck him, causing injury. The braking mechanism of the truck was defective, the teeth in the ratchet which engaged the emergency brake being so worn that the brake would hold only in one position.

No question was made at the trial or on this appeal that the plaintiff was in the exercise of due care and that the act of Eugene in parking the truck at the top of the hill was negligence; the only question raised is whether the trial court was correct in finding that Luigi and Amelia Giovanelli, the appealing defendants, were the owners at the time and that Eugene was acting as their servant and agent. Upon this question the trial court among others found the following facts: In the year 1932, Luigi Giovanelli, a carpenter by trade, with his wife, Amelia, became engaged in the business of selling ice, fuel oil and coal. They had a storage tank on Terrace Avenue where they resided and deliveries of the product were made by truck to customers. Their three sons all became active in working for their parents. After about a year Luigi and Amelia opened a place of business on Dixwell Avenue in New Haven and thereafter had another on Gilbert Avenue in West Haven. On April 6th, 1937, three trucks were used, an International, a Diamond T and a Dodge. The International was purchased in 1932 by Luigi and constantly used. Amelia was a co-owner of this truck and it was listed for taxation in her name by Luigi, with her assent and as her agent, in the town of West Haven, during the years 1933, 1934, 1935 and 1936 and she paid the tax assessed thereon. The Diamond T truck was purchased in July, 1936, by conditional bill of sale in the name of Evio, but in fact was purchased by Luigi and Amelia and was listed for taxation in the town of West Haven, in October, 1936, in the name of Amelia by Luigi as her agent and by her assent, and the tax thereon was paid by her. Two trade names were used in carrying on the business, ‘ The United Fuel and Oil Company’ and ‘ Giovanelli & Son’ and billheads were used bearing these names. At the Gilbert Avenue place a...