Rossignol v. Danbury School of Aeronautics, Inc.

• Citation: 227 A.2d 418,154 Conn. 549
• Parties: , 4 UCC Rep.Serv. 305 Vincent J. ROSSIGNOL v. DANBURY SCHOOL OF AERONAUTICS, INC., et al.
• Decision Date: 28 February 1967
• Court: Supreme Court of Connecticut

Page 418

227 A.2d 418

154 Conn. 549, 4 UCC Rep.Serv. 305

Vincent J. ROSSIGNOL v. DANBURY SCHOOL OF AERONAUTICS, INC., et al.

Supreme Court of Connecticut.

Feb. 28, 1967.

Paul W. Orth, Hartford, with whom, on the brief, was Peter B. Sullivan, Hartford, for appellant (plaintiff).

John Crosskey, Hartford, for appellee (defendant Piper Aircraft Corp.).

Thomas J. Hagarty, Hartford, for appellees (defendants Avco Corp. et al.).

Before KING, C.J., and ALCORN, HOUSE, COTTER and RYAN, JJ.

HOUSE, Associate Justice.

The facts giving rise to this action, as admitted by demurrer, may be briefly summarized. The defendant Eaton Manufacturing Company sold an exhaust valve to the defendant Avco Corporation. Avco incorporated this exhaust valve into a motor which it manufactured and sold to the defendant Piper Aircraft Corporation. Piper incorporated this motor into an airplane which it manufactured and sold to the defendant the Danbury School of Aeronautics, Inc. Danbury School sold the airplane to a customer, who, after using the airplane, resold it to Danbury School, which subsequently sold it to the plaintiff in May, 1963. In August, 1963, the airplane was damaged in a crash landing due to engine failure, which, in turn, was 'due to a cracked or defective exhaust valve in Number 3 cylinder probably caused by excessive valve guide wear.' At the time of the accident, the engine had been operated for 687 hours. Normal overhaul time for such an engine is 800 to 1200 hours.

The plaintiff in a four-count complaint has sued all of the above-mentioned parties except the first purchaser from the Danbury School. The school answered on the merits and is not involved in this appeal. The remaining defendants, Piper, Avco and Eaton, were each the object of an individual count. As to each of these three defendants, there was set up in a single count three causes of action sounding in (1) warranty, express 'and/or' implied, (2) negligence and (3) 'tortious conduct . . . in manufacturing and selling a product containing a defect, or likely to develop a defect, which made or would make such product unreasonably dangerous for those purposes for which it would reasonably be used.' This manner of pleading is a permitted practice; Veits v. City of Hartford, 134 Conn. 428, 58 A.2d 389; but a hazardous and complicating one in a case already complicated by the joinder of multiple defendants.

From this point on, the case developed into a gordian knot of procedural difficulties owing to a failure of the parties to observe elemental rules of pleading and practice. It is a knot which we can neither entirely untie nor cut without prejudice to one or the other of the parties.

Piper, Eaton and Avco each filed demurrers which were sustained. Piper's amended demurrer was addressed to the entire second count directed against it. As we have noted, the count purported to set out three causes of action, one of which sounded in negligence. The demurrer did not reach the negligence aspects of the count, and accordingly, even if the demurrer was good as to the other allegations, since it was addressed to the entire count, it should not have been sustained. Practice Book § 106; McNish v. American Brass Co., 139 Conn. 44, 54, 89 A.2d 566, cert. denied, 344 U.S. 913, 73 S.Ct. 336, 97 L.Ed. 704; Cashman v. Meriden Hospital, 117 Conn. 585, 586, 169 A. 915; Folwell v. Howell, 117 Conn. 565, 568, 169 A. 199; Blakeslee v. Board of Water Commissioners, 106 Conn. 642, 649, 139 A. 106, 55 A.L.R. 1319; Goldfarb v. Cohen, 92 Conn. 277, 281, 102 A. 649; see Practice Book Form 258 (third form).

The joint demurrer of Eaton and Avco to the respective counts directed against them was limited to the purported causes of action other than that sounding in negligence. The sustaining of this demurrer would, therefore, under normal circumstances, present on appeal only the specific question as to whether the counts stated causes of action for express 'and/or' implied warranty and for manufacturing and selling a defective and dangerous product.

The judgment as printed in the record and a reference in the plaintiff's brief, however, have prompted us to examine the file in this case. It discloses that the court's memorandum of decision sustaining the demurrers was filed on June 16, 1965. On July 28, 1965, the plaintiff filed a motion for permission to amend his complaint, and this motion was granted on September 10, 1965, the amendment being docketed as filed on that day. This pleading amended each of the counts as to which in whole or in part, a demurrer had been sustained by removing the cause of action based on negligence and, as to each defendant, made that cause of action a separate additional count of the complaint. 'When a demurrer to the whole or a portion of a pleading which purports to state an entire cause of action is sustained, the sustaining of the demurrer removes from the case the cause of action demurred to. Practice Book (1951) § 98 (now Practice Book, 1963, § 112). 'Whenever, after a demurrer sustained, the complaint or pleading demurred to is amended or a substitute filed, that demurrer, and the pleading to which it relates are taken out of the case. The filing of the amendment or substitution, as the case may be, is a withdrawal of the first.' Eames v. Mayo, 93 Conn. 479, 489, 106 A. 825; Maltbie, Conn.App.Proc., § 48.' Grady v. Kennedy, 145 Conn. 579, 584, 145 A.2d 124; Pope v. Town of Watertown, 136 Conn. 437, 438, 72 A.2d 235; Antman v. Connecticut Light & Power Co., 117 Conn. 230, 234, 167 A. 715; Lakitsch v. Brand, 99 Conn. 388, 389, 121 A. 865; Allen v. Chase, 81 Conn. 474, 475, 71 A. 367; Pettus v. Gault, 81 Conn. 415, 418, 71 A. 509; Arnold v. Kutinsky, 80 Conn. 549, 552, 69 A. 350; Mitchell v. Smith, 74 Conn. 125, 128, 49 A. 909; Boland v. O'Neil, 72 Conn. 217, 220, 44 A. 15; Goodrich v. Stanton, 71 Conn. 418, 424, 42 A. 74. Hence, the effect of the plaintiff's amendment to the count against Piper, which had been demurred to in its entirety, operated as a removal or withdrawal of that count, and accordingly the ruling on the demurrer addressed to that entire count cannot be made the subject of an appeal. Antman v. Connecticut Light & Power Co., supra. On the other hand, the amendment to the counts directed against Eaton and Avco did not amend them with respect to the only two causes of action set forth therein to which the demurrer of those defendants was addressed. Accordingly, the rulings on those demurrers remained properly the subject of appeal.

On September 20, 1965, ten days after amending his complaint, the plaintiff, presumably acting pursuant to the authority of such cases as Vincent v. McNamara, 70 Conn. 332, 340, 39 A. 444, moved 'that judgment be entered against him on each of the following Counts of the Complaint as amended: (a) on the Second Count in favor of Piper Aircraft Corporation; (b) on the Third Count in favor of Avco Corporation (c) on the Fourth Count in favor of Eaton Manufacturing Company.' The file shows that the plaintiff's motion was granted on October 8, but it does not disclose that any judgment has been rendered on the complaint as amended, despite the granting of the motion. On September 20, Eaton and Avco jointly moved for judgment in their favor 'by reason of the Court's sustaining of their demurrers to the plaintiff's complaint by memorandum dated June 14, 1965.' On September 22, 1965, Piper filed a similar motion for judgment. The record shows that both of these motions for judgment on the original unamended complaint were granted on October 8, almost a month after the complaint had been amended and on the same day on which the court granted the plaintiff's motion for judgment on the complaint as amended. As rendered, the judgment recites that motions for judgment were filed by each of the three defendants and concludes 'that that complaint is insufficient.'

It is from this judgment, based on the sustaining of the demurrers to the unamended complaint, that the plaintiff has appealed, claiming that the court erred in sustaining the demurrers to the second, third and fourth counts. Since counsel did not act upon this court's suggestion, made at the commencement of argument, that some effort be made to rectify or clarify the record, we must take the appeal as it has been presented.

We have already noted, since Piper's demurrer was addressed to the entire second count but did not reach the cause of action in negligence asserted in that count, it was error to sustain that demurrer. The plaintiff's subsequent amendment of that count after the demurrer to it was sustained, however, operated as a withdrawal of that count, and the ruling on the demurrer addressed to that count cannot be made the subject of an appeal. Antman v. Connecticut Light & Power Co., 117 Conn. 230, 234 167 A. 715. Accordingly, the present appeal so far as it pertains to the judgment rendered on demurrer sustained in favor of Piper must be dismissed.

The demurrer of Avco and Eaton was not addressed to the entire unamended third and fourth counts but, as permitted by Practice Book § 106, only to two of the three causes of action set out in each count. Therefore the judgment as rendered was erroneous in declaring that, as to them, the entire complaint was insufficient. The causes of action sounding in negligence were not attacked by their demurrer, and no claim has been raised that the complaint does not allege as to each of them a good cause of action in negligence. Determination of the merits of those causes of action is still pending.

There remains for decision, therefore, the ruling of the trial court sustaining the demurrer of Avco and Eaton as to the causes of action other than negligence set out in the counts severally addressed against them. On his appeal, the plaintiff has not briefed the assignment of error directed to the ruling on the demurrer so far as it held that the complaint failed to set out a good cause of...