Malone v. Steinberg

• Court: Connecticut Supreme Court
• Writing for the Court: Before BROWN; O'SULLIVAN
• Citation: Malone v. Steinberg, 138 Conn. 718, 89 A.2d 213 (Conn. 1952)
• Decision Date: 06 May 1952
• Parties: MALONE v. STEINBERG et al. Supreme Court of Errors of Connecticut

Page 213

89 A.2d 213

138 Conn. 718

MALONE v. STEINBERG et al.

Supreme Court of Errors of Connecticut.

May 6, 1952.

John P. Hodgson, Hartford, for appellants Steinberg.

Frank A. Francis, Hartford, John J. Devine, Jr., and Edward J. Turbert, Hartford, for appellee.

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.

O'SULLIVAN, Associate Justice.

The plaintiff brought this action against Ann Steinberg, Hyman Steinberg, Rebecca Bercowetz and Kalman Bercowetz. The complaint is in two counts, one directed against the Steinbergs, the other against the Bercowetzes. During the course of the trial, Kalman was dropped as a party defendant. The court rendered judgment for the plaintiff to recover from the remaining three. Of these, only the Steinbergs have appealed. We shall refer to them as the defendants and shall limit our discussion to the count addressed to them.

The court found the following facts: In 1946 the defendants resided at 399 Sigourney Street in Hartford. In that year they acquired a collie which they kept until March, 1949. At that time, they gave the dog to Rebecca Bercowetz and delivered it to her in Bloomfield. Although this was several miles away, the dog frequently made its way back to its former owners. On such occasions, before the dog was returned to Bloomfield, they allowed it to stay on their property and to sleep on their porch at night. This occurred many times between March and July 8, 1949. The defendants knew that the dog had a habit of barking and running as if to attack those passing on the sidewalk and they further knew that this habit often caused fright to pedestrians.

The plaintiff is seventy-one years old. About 6 p. m. on July 8, 1949, while he was walking on the sidewalk in front of the defendants' premises, the dog, barking as it ran, came towards him from the vicinity of the house. Mrs. Steinberg was then standing in her doorway. Although she could have restrained the dog or called it back, she made no attempt to do so. The plaintiff became frightened as the dog approached. He gave a 'little kick' at it, and, as he turned to proceed, fell backwards upon the walk and fractured his wrist.

The defendants seek to correct the finding. They would gain no advantage, however, if their requested additions were granted. A finding will not be corrected by the addition of facts which will not affect the result. Tortorici v. Sharp Moosop, Inc., 107 Conn. 143, 144, 139 A. 642; Maltbie, Conn.App.Proc., § 93. The defendants' further attack on the finding, whereby they seek to strike several paragraphs devoted to a recital of the facts found by the court, is equally unavailing. The essential paragraphs which are challenged have ample support in the evidence.

On the basis of facts enumerated above, the court concluded that the defendants should be held liable because they had 'failed to use reasonable care to keep the premises safe from harm caused by the known propensities of the dog.' Their main claim is that the court erred in two respects, first, in rendering judgment upon a cause of action which was not pleaded, and, secondly, in holding them liable after finding that the plaintiff was injured through fright caused by the dog, contrary to the allegation in the complaint that the dog had attacked and knocked him to the ground.

Pleadings have their place in our system of jurisprudence. While they are not held to the strict and artificial standard that once prevailed, we still cling to the belief, even in these iconoclastic days, that no orderly administration of justice is possible without them. Berman v. Kling, 81 Conn. 403, 405, 71 A. 507. It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint. Nash Engineering Co. v. City of Norwalk, 137 Conn. 235, 239, 75 A.2d 496. A plaintiff may not allege one cause of action and recover upon another. Facts found but not averred cannot be made the basis for a recovery. Modern Home Utilities, Inc., v. Garrity, 121 Conn. 651, 654, 186 A. 639; Whiting v. Koepke, 71 Conn. 77, 79, 40 A. 1053.

The count directed against the defendants is unmistakably based on § 3404 of the General Statutes. ¹ It cannot be construed as alleging any other cause of action than that provided by the statute. See Leone v. Kelly, 77 Conn. 569, 571, 60 A. 136. The conclusions stated in the finding, however, disclose that the court rendered judgment upon the ground that the plaintiff's injuries were occasioned by the negligence of the defendants. In other words, the court decided the case upon an unpleaded cause of action.

It does not follow, however, that the judgment was erroneous. This is not a case where the plaintiff has failed to establish the cause of action upon which he relied. See Moran v. Bentley, 69 Conn. 392, 403, 37 A. 1092. It is an instance where not only did he allege facts constituting a good cause of action under § 3404 but the finding shows that he proved them. See McKenna v. Whipple, 97 Conn. 695, 702, 118 A. 40.

The pertinent essentials of § 3404 are three in number. The statute imposes liability upon these defendants if (1) damage was done to the plaintiff's person by the dog, (2) at the time of such damage, the plaintiff was not committing a trespass or other tort, or was not teasing, tormenting or abusing the dog, and (3) the defendants were its keepers. All of these essentials were alleged in the first count and were put in issue by an answer which was, in effect, a general denial.

To be sure, the court concluded that the defendants were not keepers of the dog. The subordinate facts, however, do not warrant this conclusion and it must be stricken, as requested by the plaintiff in his assignment of errors filed under the rule. Practice Book, 1951, § 393. Section 3374 of the General Statutes defines keeper as 'any person, other than the owner, harboring or having in his possession any dog'. The defendants obviously harbored the dog....