Dibble v. Wolff

• Decision Date: 22 March 1949
• Citation: 135 Conn. 428,65 A.2d 479
• Court: Connecticut Supreme Court
• Parties: DIBBLE v. WOLFF et al.

135 Conn. 428

65 A.2d 479

DIBBLE

v.WOLFF et al.

Supreme Court of Errors of Connecticut.

March 22, 1949.

Appeal from Superior Court, New Haven County; Mellitz, Judge.

Action by Albert B. Dibble against Katherine H. Wolff and one Hennessey, for injuries to plaintiff's person and automobile, allegedly caused by negligence of defendants, brought to superior court, where defendants filed counterclaims and the issues were tried to court. Judgment for plaintiff on complaint and counterclaims, and defendant Hennessey appeals.

No error.

O'SULLIVAN, J., dissenting.

David J. McCoy and Benedict S. Moss, both of New Haven, for appellant (defendant Hennessey).

Frederick C. Hesselmeyer and Nathan Reback, both of New Haven, for appellee (plaintiff).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and O'SULLIVAN, JJ. (Judge PATRICK B. O'SULLIVAN of the Superior Court sat for Judge DICKENSON).

BROWN, Judge.

The plaintiff brought this action to recover for personal injuries and for damage to his automobile sustained at a street intersection in New Haven on May 23, 1945, in a collision between his car, which he was driving, and that of the defendant Hennessey, driven, it was alleged, as a family car by his daughter, the defendant Wolff. Each defendant filed an answer denying the principal allegations of the complaint and alleging contributory negligence as a second defense, and a counterclaim. The court rendered judgment against both defendants for the plaintiff to recover on his complaint, and in favor of the plaintiff on the counterclaims. An appeal was filed by counsel for the defendants, but the papers were so carelessly drawn as to render it uncertain whether the appeal had been taken by one or both. By the brief of the defendant Hennessey, hereinafter called the defendant, the appeal is now restricted to him.

Error is assigned in the court's failure to find that the defendant had made the claims of law ‘appearing in’ the questions of law stated in his request for a finding. In the draft finding the defendant failed to state his claims of law made in the trial court with the court's rulings thereon, as required by the rules. Practice Book, § 342 and Form No. 645(A). The court might properly have called counsel's attention to this omission and afforded opportunity to remedy it. Carlson v. Robertson, 100 Conn. 524, 526, 124 A. 219; O'Keefe v. Bassett, 132 Conn. 659, 660, 46 A.2d 847; Saporiti v. Austin, A. Chambers Co., 134 Conn. 476, 478, 58 A.2d 387. The fault was not corrected and the court's finding in response to the request and draft finding recites no claims of law as called for by the rules. Practice Book, § 344. Ordinarily, the trial court is under no obligation to make a finding where the request and draft finding are materially defective. Rybczyk v. Garlick, 103 Conn. 754, 757, 131 A. 738; Conn.App.Proc. § 71. It may, however, accept such a request and draft finding as sufficient. State v. Duffy, 66 Conn. 551, 555, 34 A. 497; Goodno v. Hotchkiss, 88 Conn. 655, 658, 92 A. 419. Where it does so but fails to include a statement of the claims of law made by the appellant at the trial, the defect will not necessarily defeat the appeal, provided the record reasonably discloses what the claims of law were and it appears that the rights of the appellee will not be prejudiced. See Scholfield Gear & Pulley Co. v. Scholfield, 70 Conn. 500, 504, 40 A. 182; O'Neil v. Manufacturers' National Bank, 92 Conn. 667, 671, 104 A. 390; Practice Book § 423. That is the situation here. The defendant's request for a finding fully set forth the questions of law which he asked to have reviewed. The only one involved in this appeal we quote below.

No error is assigned as to any fact found or any conclusion reached by the court. The only error assigned, aside from that complaining of the omission of the claims of law, is that the court erred ‘in holding that the so-called ‘family car doctrine’ was applicable to the defendant Hennessey, when the defendant-driver, Katherine H. Wolfe, his daughter, had her husband's automobile for her own use and who resided with her own immediate family, in another town and county, and who was not living in the defendant John J. Hennessey's household at the time of the collision and who had not lived there for several years prior thereto.' In support of his claim under this assignment, the defendant urges that, to constitute one a member of the car owner's family in the sense requisite to liability under the family car doctrine, it is essential, although consanguinity is not necessary, that one be a member ‘of a collective body of persons living in one household and under one head and government.’ The contention of the defendant boils down to this: Since the defendant Wolff was living in a separate home of her own and so was not one of those constituting his household, he could not be held liable under the family car doctrine. He has referred to authorities which it is claimed support this proposition. In the view which we take of the question as presented upon the record before us, it is unnecessary to consider the general principle which the defendant advocates. The question is whether upon this record the facts found are sufficient to support the conclusion that the defendant is liable under the family car doctrine.

This is a summary of the material facts: The defendant owned the car which his daughter negligently operated on May 23, 1945, and which collided with the plaintiff's car. At the time, the daughter was driving her mother to the home of the latter and the defendant in Ansonia where the car was kept. As she approached the intersection where the collision with the plaintiff's car occurred, she was being directed by her mother as to the route to take to Ansonia. Earlier that day she had driven her mother to New Haven to visit with friends of the latter, and they were returning from a shopping trip when the accident happened. The defendant Wolff was married August 1, 1942. In May, 1945, she resided in Huntington, Connecticut. Her husband was in the armed services. Before her marriage she lived with her parents at their residence in Ansonia, and she had general authority to drive the defendant's car both before and after her marriage, particularly when her mother, who was unable to drive, desired to use the car. The car was maintained by the defendant as a family car, and his wife and daughter had general authority to use it. A further fact found, undisputed except for the indirect challenge involved in the defendant's assignment of error quoted above, was that the car was being used as a family car at the time of the collision.

The court's conclusion that the defendant failed to sustain the burden of rebutting the presumption raised by § 1658c of the Cumulative Supplement of 1935, Rev.1949, § 7904, indicates a misconception as to the effect of the statute. As was stated in O'Dea v. Amodeo, 118 Conn. 58, 65, 170 A. 486, 488, ‘the intent of the statute is that the...