Theron Ford Co. v. Dudley

• Decision Date: 29 May 1926
• Citation: 133 A. 746,104 Conn. 519
• Court: Connecticut Supreme Court
• Parties: THERON FORD CO. v. DUDLEY ET AL.

133 A. 746

104 Conn. 519

THERON FORD CO. v. DUDLEY ET AL.

Supreme Court of Errors of Connecticut.

May 29, 1926

Appeal from Superior Court, New Haven County; Leonard J. Nickerson Judge.

Action by the Theron Ford Company against Edward H. Dudley and others for recovery of the price of services and the expenses as undertaker at funeral of wife of defendant Dudley. Verdict for plaintiff against defendant Dudley and in favor of defendant Minnie Davis Hull for her costs, and defendant Dudley appeals. Error, and new trial ordered.

Frederick M. Peasley and Clayton L. Klein, both of Waterbury for appellant.

Louis Harris, of Milford, for appellee.

HAINES, J.

This case was first brought on two counts, and a third was later added, each purporting to set up this single cause of action in a different way. Before the case went to the jury, a bill of particulars was filed by order of court. No direction was given to the jury as to these different counts, and the case went to them on the general question whether the plaintiff had proved its claim as specifically itemized in the bill of particulars.

The daughter of the deceased, Minnie Davis Hull, was, on motion made a party defendant, as was D. F. Bowes, the administrator of the estate of the decedent. The latter successfully demurred to the complaint, and appears to have been thereafter treated as out of the case. The defendant daughter made a general denial, and the court, in its charge to the jury, directed them to return a verdict in her favor, which was done. The jury found the issues for the plaintiff and against the defendant Dudley, who appeals. The pleadings are in some respects confused and unsatisfactory, but it appears that the defendant Dudley, at one point under a " special defense," alleged, in substance, that shortly before her death the deceased had transferred all her property, both real and personal, to the daughter, without consideration, and that when the mother died, the daughter told the defendant Dudley, that she would take charge of the funeral and pay the bills therefor. This was properly and successfully demurred to by the plaintiff. At most it was a promise by the daughter to the defendant Dudley, and could not affect the rights of the plaintiff. The defendant Dudley thereafter rested his case on the general issue.

The record shows that the plaintiff's claim to recover went to the jury on two grounds, viz: (1) That the plaintiff had furnished the various items of services, supplies, and expenses named in the bill of particulars, upon the express request of the defendant Dudley, and that they had not been paid for; and (2) that the deceased left no estate, and the husband was therefore liable under the statute for these items which had been furnished by the plaintiff, and for which it had not received payment. The only evidence in the case was that offered by the plaintiff; none being offered on the defense.

After the court denied the defendant's motion to set aside the verdict, the latter filed a " request for and proposed draft finding" containing the claims of law which he desired to have reviewed, and a " proposed draft finding," in which he requested the court to find that the plaintiff had offered no evidence of an agreement as to prices or the reasonableness of the charges or of a request to the plaintiff for the services and expenses, or that the prices of the supplies appeared in the catalogue shown to the defendants, or that the estate of the deceased was not sufficient to pay the funeral expenses. The request also set forth certain occurrences at the trial in which the court had excluded testimony of Minnie Davis Hull, to which exclusion the defendant Dudley had excepted, and, lastly, a purported statement of what had occurred between court and counsel when the second count was, as now claimed by the defendant Dudley, stricken out by the court.

After the court filed a finding, the defendant Dudley moved to correct in various particulars, and recited the annexation of certain portions of the evidence and other matters as exhibits from A to C, inclusive. These exhibits and the transcripts are now printed in the record, but are not certified as correct, and this is explained by the statement of the court that the defendant Dudley did not file the transcripts with the motion, and failed to do so even after the court had requested that it be done, and, therefore, the court refused to certify them as they now appear in the record. These matters are the subject, for the most part, of the first four of the reasons of appeal.

Reasons of appeal numbered 6 to 13, inclusive, are mere general allegations that the court erred in charging as set forth in certain detached portions of the charge as quoted. These are not proper assignments of error. They do not conform to our statute, which requires that the appellant shall " state the special errors complained of distinctly." There are numerous allegations by the court under each of the quoted passages, and it is impossible under the circumstances for the appellate court to be certain what it is that the appellant claims is erroneous. Some of the statements are obviously not subject to question or intended to be questioned by the appellant. General Statutes, § 5833; Practice Book, pp. 100, 107; State v. Tripp, 84 Conn. 640, 643, 81 A. 247; Johnson v. Cooke, 85 Conn. 679, 683, 84 A. 97, Ann.Cas. 1913C, 275; Ferrignio v. Keasbey, 93 Conn. 445, 449, 106 A. 445.

As to the fourteenth reason of appeal, which relates to the exclusion of the testimony of Minnie Davis Hull, the ruling of the court was correct. As we have already intimated, it was quite immaterial, so far as the plaintiff was concerned, what promises, if any, were made or understandings reached between the defendants themselves.

The fifth reason of appeal relates to the defendant Dudley's request for a separate verdict on each count, with which request the court did not comply. As the case went to the jury, the liability of the defendant Dudley was predicated, first, upon his request that the plaintiff furnish the professional services and incur the expenses of the funeral, and, second, upon the provisions of the statute (General Statutes, § 5043), which makes the husband liable for the funeral expenses of the wife, if the estate of the wife is not sufficient to pay therefor.

Upon the defendant's claim of error in refusing to set aside the verdict, we have before us for examination the transcript of the entire evidence, and this we may examine to determine whether the verdict was against the law of the case, as claimed by the appellant. From this examination it appears that the jury could reasonably have found that the defendant Dudley did, in legal contemplation, order the materials services, and expenses with which the plaintiff now seeks to charge him, under an implied promise to pay the plaintiff therefor. They could also reasonably have found that the main item of the bill, viz. the casket at $300, was selected by the defendant Dudley, and pronounced satisfactory by him, and that the remaining items of the bill were either assented to by him or were expenses expressly incurred by him in person, the bills being sent to the plaintiff as the undertaker in charge, and paid by the latter, and that the total bill was presented to the...