Rogers v. Kinnie

• Court: Connecticut Supreme Court
• Writing for the Court: MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.
• Citation: Rogers v. Kinnie, 134 Conn. 58, 54 A.2d 487 (Conn. 1947)
• Decision Date: 16 July 1947
• Parties: ROGERS v. KINNIE et al.

134 Conn. 58

54 A.2d 487

ROGERS

v.KINNIE et al.

Supreme Court of Errors of Connecticut.

July 16, 1947.

Appeal from Superior Court, Fairfield County; King, Judge.

Action by Agnes Rogers against Margaret Kinnie and others to compel defendants to contribute to the support of plaintiff, who was their mother. After trial to the court, judgment was rendered for defendants, and the plaintiff appeals.

Error and new trial ordered.

Bernard S. Peck, of Bridgeport (David Goldstein and Alvin W. Peck, both of Bridgeport, on the brief), for appellant (plaintiff).

Joseph J. Devine, of Bridgeport, for appellees (defendants).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

ELLS, Judge.

The plaintiff, a woman about seventy years of age, brought this action to compel three of her four children to contribute reasonable sums for her support, as provided by General Statutes, § 1717. The trial court entered judgment for the defendants and the plaintiff has appealed.

To bring the statute into operation it must be shown (1) that the plaintiff is poor and unable to support herself; (2) that the defendants are ‘able to provide’; and (3) that they have neglected to do so. Tulin, v. Tulin, 124 Conn. 518, 522, 200 A. 819. The basis of the trial court's decision was that, although the plaintiff was, at the time of the trial, poor and unable to support herself within the meaning of the statute, and the defendants were able to support her, she had failed to sustain her burden of proving that the defendants, at the time of the commencement of the action, had neglected to provide for her support. We state only such facts as are necessary to our conclusion.

Prior to the summer of 1943, the plaintiff had lived in the home of each of the defendants for various periods of time but was made to feel unwelcome and unwanted. During that summer she secured employment in the home of a married couple and their two young children. Her duties were to care for the children when they were not at school and while the parents were at work. She assisted in the housework and cooked some of the meals, but this work was wholly voluntary and was done because she wished to do it. As compensation, she received her board and lodging and $10 per week. She visited the homes of the defendants upon several occasions but did not want them to know where she was staying and did not tell them. However the fourth child, Joseph, who is not a defendant, had positive knowledge of his mother's exact place of residence at all times. He was employed at the same place as the defendant Michael and was in contact with him on many occasions.

The defendant Margaret Kinnie had in her possession policies on the plaintiff's life, aggregating about $600, in which the right was reserved to the plaintiff to change the beneficiary. In the early part of March, 1946, she went to see Margaret and told her that she was unable, and was not going, to work any longer, and she asked Margaret to turn over the policies to her as she wanted to use the money to take care of herself. Margaret refused to surrender them and still retains them in her possession. On March 14, 1946, the plaintiff's attorney made written demand on each of the defendants for ‘contributions from you for her support as required by the Connecticut law,’ and advised them that legal proceedings would be brought against them if they failed to make arrangements to provide for her support. None of the defendants thereafter got in touch with either the plaintiff or her attorney. The present action was instituted on March 28, 1946.

For the purposes of trial the plaintiff was examined by a physician on November 19, 1946, and was found to be suffering from high blood pressure, arthritis, generalized arteriosclerosis and hypertensive heart disease. She had headaches, dizziness and generalized pain and was in some danger of having a cerebral hemorrhage. It is unnecessary to go into further details as to her condition at the time of trial in view of the court's first conclusion: ‘The plaintiff is, and at the time of trial was, poor and unable to support herself within the meaning of Section 1717 of the General Statutes.'

The trial court based its decision upon the ground that there had been no ‘neglect’ of the children to support the plaintiff. We can properly turn to the memorandum of decision to ascertain the ground upon which that conclusion was reached and to test it. Conn.App.Proc., p. 120. We find that the court reached its conclusion upon the ground that until the plaintiff was examined on the eve of trial her physical condition was not known; that the children would not have ascertained the facts disclosed by the examination had they made inquiry before the trial; and that they were not neglectful unless in some way notice of these physical infirmities had been brought home to them.

The plaintiff might have felt and been too feeble to carry on the work on which she relied for her support without knowing the details of the physical conditions which would be disclosed by a medical examination. It is the result, not the cause, of her physical condition which is the controlling consideration. After the children received notice that she was looking to them for support, had they gone to her counsel, as he invited them to do, or to her to ascertain the facts, they might have learned that she was not reasonably able any longer to carry on the work. The court found that the plaintiff, because of her physical condition, at the time of trial should not have been performing even the comparatively light duties required of her in her employment, and that, despite her age and physical condition, she continued to work because she had no other source of income. Even though the causes which produced her feebleness were not known at the commencement of the trial and...