Smith v. Furness

• Court: Connecticut Supreme Court
• Writing for the Court: MALTBIE, Chief Justice.
• Citation: Smith v. Furness, 117 Conn. 97, 166 A. 759 (Conn. 1933)
• Decision Date: 20 June 1933
• Parties: SMITH v. FURNESS et al. (two cases)

166 A. 759

117 Conn. 97

SMITH v. FURNESS et al. (two cases)

Supreme Court of Errors of Connecticut.

June 20, 1933

Appeal from Superior Court, New London County; Alfred E. Baldwin and Ernest A. Inglis, Judges.

Actions by Cora Belle Smith and by Ernest A. Smith, administrator of the estate of Clifton Ernest Smith, deceased, against Frank W. Furness and others, to recover damages for personal injuries to plaintiff in first action and damages for death of plaintiff's interstate in second action, alleged to have been caused by the heedless and reckless disregard of the rights of plaintiffs by defendants. The court sustained demurrers to the second and third defenses of the answer, and denied motions to amend the answers. The issues were tried to the jury. Verdict and judgment for plaintiff in each case and defendants appeal.

Error and causes remanded.

C Hadlai Hull, of New London, for appellants.

Arthur T. Keefe, of New London, and Leon J. Beisheim, of Waterford, for appellees.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY, JJ.

MALTBIE, Chief Justice.

Except in one respect the issues presented in these two appeals are the same and we shall discuss those common to both in connection with the appeal in the action brought by Cora Belle Smith. She sought a recovery for injuries received in an accident while riding as a guest in an automobile driven by one defendant, Irene Frances Furness, and owned by the other defendant, Frank W. Furness. The complaint alleged that the plaintiff was a passenger and guest in the automobile and she evidently was seeking a recovery under the " Guest Statute" so called. General Statutes, § 1628. The defendants filed a general denial and also a second defense in which it was alleged that the plaintiff in entering the automobile " assumed the risk of injury as alleged in the complaint." A demurrer to this defense was sustained on the ground that no facts were alleged which showed that there was an assumption of risk by the plaintiff. Acts and contracts may be stated according to their legal effect but in so doing the pleadings should be such as fairly to apprise the adverse party of the state of facts which it is intended to prove. Practice Book, p. 283, § 181; Plumb v. Curtis, 66 Conn. 154, 173, 33 A. 998; and see O'Keefe v. National Folding Box & Paper Co., 66 Conn. 38, 44, 33 A. 587; Stillman v. Thompson, 80 Conn. 192, 195, 67 A. 528; Milaneseo v. Calvanese, 92 Conn. 641, 642, 103 A. 841; Etna Life Ins. Co. v. Richmond, 107 Conn. 117, 120, 139 A. 702; New Milford Savings Bank v. Lederer, 112 Conn. 447, 450, 152 A. 709. The adverse party has the right to have the facts appear so that the question whether they support the conclusion may be determined and that he may have an opportunity to deny them. Chesebro v. Babcock, 59 Conn. 213, 217, 22 A. 145. A pleading defective in alleging a conclusion without facts to support it is demurrable. Stillman v. Thompson, supra. The ruling of the trial court sustaining the demurrer to this defense was correct.

After the sustaining of the demurrer, the defendants moved the court for permission to file a substitute defense in which they did set up the facts upon which they relied to show an assumption of risk by the plaintiff. The court refused to allow the amendment, substantially because it thought that there was no distinction in law between the defenses of contributory negligence and assumption of...