Marciel v. Berman

• Decision Date: 23 February 1926
• Court: Connecticut Supreme Court
• Parties: MARCIEL v. BERMAN ET AL.

132 A. 397

104 Conn. 165

MARCIEL v. BERMAN ET AL.

Supreme Court of Errors of Connecticut.

February 23, 1926

Appeal from Superior Court, New Haven County; George E. Hinman Judge.

Action by Anna Marciel against Barney Berman and others to recover damages for injuries to plaintiff's property alleged to have been caused by negligent operation of the defendant's automobile. Judgment for plaintiff to recover $2,176.76, and defendants appeal. No error.

Warren F. Cressy, of Stamford, for appellants.

Max R Traurig, of Waterbury, for appellee.

CURTIS, J.

If the finding is not corrected, it could not be reasonably claimed that the judgment could be attacked because of the conclusions of the court as to negligence or contributory negligence.

The defendant excepted to paragraph 27 of the finding and to the refusal of the court to find paragraphs 27 and 27a of its motion to correct the finding. In their reasons of appeal 19 20, and 21, they allege as a ground of error this action of the trial court. But neither in the motion to correct, nor in the exceptions to the finding, nor in the reasons of appeal, do the defendants set forth any ground for the correction of the finding.

The motion to correct, the exceptions to the finding, and the reasons of appeal are apparently based on a claim that some facts were found against the weight of the evidence. That is not a permissible ground for the correction of a finding, hence the refusal to correct is not a basis for an exception or for a reason of appeal. De Feo v. Hindinger, 120 A. 314, 98 Conn. 578, 580. We there say, page 580 (120 A. 315):

" The written exceptions, annexed to the motion to correct [a finding], are the foundation of any appeal relating to the correction of a finding."

An exception should state the ground or basis of the exception, substantially on one of the grounds disclosed by the rules. Perrotti v. Bennett, 109 A. 890, 94 Conn. 533. Practice Book, p. 309, § 11, states the grounds for an exception. See Hine v. McNerney, 116 A. 610, 97 Conn. 308; Moran v. Holmes Co., 121 A. 346, 99 Conn. 180; Dexter Yarn Co. v. American Fabrics Co., 129 A. 527, 102 Conn. 529.

This disposes of all the reasons of appeal relating to a correction of the finding, and, as stated at the outset, all the reasons of appeal attacking the conclusions of the court relating to the negligence of the defendant or the contributory negligence of the driver of the plaintiff's automobile are not tenable unless the finding is corrected. There remains for consideration the defendants' claim:

" That the court erred in its conclusion that at the time of the collision, the situation as to the registration of the truck was such as to entitle the plaintiff to maintain and recover in this action."

The defendants' claim of error is that the provisions of section 61 of chapter 400 of the Public Acts of 1921 bar a recovery by the plaintiff, since upon the facts found she was not the owner of the motor vehicle damaged. This section provides that--

" No recovery shall be had in the courts of this state by the owner of a motor vehicle which has not been legally registered in accordance with section nine for injury to person or property received by reason of the operation of such motor vehicle upon any public highway."

The facts relating to the ownership and registration of the Mack truck injured in the collision, and for which the plaintiff brought this action, are as follows: Before February 10 1923, one F. C. Washington, of Waterbury, was the owner of the truck under a conditional bill of sale from the Mack Truck Company, and he had possession of and was using the truck in his moving business. On that day Washington purported to mortgage his interest in the truck to the plaintiff by a chattel mortgage (recorded in Waterbury) to secure an indebtedness of $3,800 to the plaintiff, which sum the plaintiff loaned him to purchase the truck. On January 2, 1924, the plaintiff caused the truck to be registered in her name because of such mortgage interest. Washington, after his purchase of the truck, took and held possession of it until June 26, 1924, when he transferred the truck to his conditional vendor, the Mack Truck Company,...