McLaughlin v. Chicken Delight, Inc.
| Decision Date | 06 February 1973 |
| Citation | 164 Conn. 317,321 A.2d 456 |
| Court | Connecticut Supreme Court |
| Parties | William F. McLAUGHLIN, Administrator (ESTATE of Eura D. McLAUGHLIN) v. CHICKEN DELIGHT, INC. |
John J. Reid, Hartford, for appellant (plaintiff).
Peter J. Preisner, Hartford, with whom, on the brief, was Robert C. Danaher, Hartford, for appellee (defendant).
Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.
This is an action in four counts to recover damages for the death of the plaintiff's decedent, alleged to have been caused by the negligence of the defendant. The case was tried together with the case of William F. McLaughlin, Administrator v. Food Caterers, Inc. There was no appeal in the second case. The trial court was also requested to take judicial notice and did take notice of the case of Chicken Delight Eastern, Inc. v. Ronald Morrison, Superior Court, Hartford County and the case of Chicken Delight Eastern, Inc. v. Thomas Doyle, Superior Court, New Haven County. In the present case, the plaintiff alleged that the motor vehicle which struck and killed the plaintiff's decedent was owned by the defendant, Chicken Delight, Inc., and that the operator of said vehicle was its agent. The allegations of ownership and agency were denied by the defendant. The court found that the operator of the vehicle, Michael Carfiro, was at fault in its operation. The court also found the issues of ownership and agency in favor of the defendant and rendered judgment for it, from which judgment the plaintiff has appealed to this court.
The plaintiff claims that the court erred in refusing to find the material facts set forth in sixteen paragraphs of the draft finding which, he claims, were admitted or undisputed. To secure such an addition the plaintiff must in his brief point to some part of the appendix, the pleadings or an exhibit properly before us which discloses that the defendant admitted those facts or conceded them to be undisputed. Gary Excavating, Inc. v. North Haven, 164 Conn. 119, 121, 318 A.2d 84. This the plaintiff has failed to do. A fact is not admitted or undisputed merely because it has not been contradicted, for the question of credibility is for the trier. Malarney v. Peterson, 159 Conn. 342, 344, 269 A.2d 274. While the plaintiff has abandoned one of his assignments of error, he pursues his attack as to thirty-eight paragraphs of the finding as having been found without evidence. The paragraphs of the finding sought to be eliminated are supported by the evidence printed in the appendix to the defendant's brief and therefore must stand. Morrone v. Jose, 153 Conn. 275, 277, 216 A.2d 196. In most instances in which he challenges facts as being found without evidence, the plaintiff seeks to substitute his own language for that of the court. In effect, the plaintiff is attempting to retry the case on appeal, a practice that has been repeatedly discountenanced. Sipp v. Sipp, 151 Conn. 705, 197 A.2d 73. No corrections are warranted. These assignments of error amount to a wholesale attack on the court's finding, and we have repeatedly pointed out that attacks of this nature rarely produce any beneficial results. Morrone v. Jose, supra, 153 Conn. 276, 216 A.2d 196.
The principal assignment of error pressed by the plaintiff is that the court erred in finding that the operator, Michael Carfiro, was 'not the agent' of this defendant acting within the scope of his employment at the time and place of this accident. In the discussion that follows, the basic conclusions reached by the court are discussed.
The following is a summary of the facts found by the court. The defendant was the franchisor and Food Caterers, Inc., was the franchisee under the terms of an agreement whereby the defendant granted solely to Food Caterers, Inc., the right to use at its store in East Hartford the name, symbols, methods and system of operation of 'Chicken Delight.' The franchise agreement was designed to control the quality, uniformity and taste of all 'Chicken Delight' products sold to the public. It provided that the defendant should have the privilege of complete inspection of the business and books of the franchisee. Under the agreement the franchisee was required to deliver promptly and at the time designated by the customer hot and freshly prepared foods from the 'Chicken Delight' store. The franchisee agreed to purchase or lease an adequate number of delivery vehicles and to 'maintain a free and adequate delivery service.' There are seven such franchises in Connecticut and 400 throughout the United States.
The franchisee owned and operated the East Hartford store already mentioned. Above its entrance was a sign with 'Chicken Delight' in large letters and 'free delivery' in smaller letters. The motor vehicle in question was owned by the franchisee. There were no markings, printing or signs on it. Inside, at the time of the accident and next to the operator, was a cardboard box imprinted with the words 'Chicken Delight.' Next to the carton was a heater to keep the food products warm during delivery to customers. At the time of the accident, the heater was in operation and Carfiro was in the process of making a delivery to a customer. Carfiro was hired by Mrs. Joyce Morrison, widow of Ronald Morrison, who, prior to his death, managed the business. While Morrison was alive, he instructed operator employees how to make deliveries. After his death, Mrs. Morrison took over this task. There was no evidence that Carfiro was hired, paid or instructed by, or known to, the defendant.
The packaged foods to be sold were limited and the only name that could be used was 'Chicken Delight'; the place of business had to be known as 'Chicken Delight,' and the precise method and manner of cooking was specifically defined. The franchisee had to purchase numerous articles and equipment stated by the franchisor to be essential. This equipment had to be purchased from the franchisor or meet the standards prescribed by it. The franchisee was required to sell its food in a container bearing the trademark 'Chicken Delight' and buy its entire requirements for the various packaging kits defined by the franchisor. The business could be conducted only at an approved location, and its construction and remodeling had to meet the franchisor's standards. The preparation and cooking of all foods had to meet specific standards.
The trial court concluded that '(a)lthough the financial interest of Chicken Delight, Inc. is advanced and the reputation and good will of Chicken Delight, Inc. are enhanced by the delivery of hot Chicken Delight food products, such is not sufficient to establish a basis for the imposition of liability on Chicken Delight, Inc.'
It is the plaintiff's contention that the facts found...
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...attack on the court's statement of the facts is improper and cannot be sustained on this appeal. See McLaughlin v. Chicken Delight, Inc., 164 Conn. 317, 319, 321 A.2d 456 (1973). There is no In this opinion the other Judges concurred. 1 General Statutes § 35-26 provides: "Every contract, co......
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