Winsor v. Hawkins.

• Decision Date: 13 April 1944
• Citation: Winsor v. Hawkins., 130 Conn. 669, 37 A.2d 222 (Conn. 1944)
• Court: Connecticut Supreme Court
• Parties: WINSOR v. HAWKINS.

130 Conn. 669

37 A.2d 222

WINSOR

v.HAWKINS.

Supreme Court of Errors of Connecticut.

April 13, 1944.

Appeal from Court of Common Pleas, Fairfield County; Pickett, Judge.

Action by Georgiana Winsor against George F. Hawkins to recover damages for injuries to person and property, alleged to have been caused by the negligence of the defendant, brought to the Court of Common Pleas in Fairfield County and tried to the court. Judgment for the plaintiff, and appeal by the defendant.

No error.

H. Allen Barton, of Greenwich, for appellant.

William L. Tierney, of Greenwich, for appellee.

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

PER CURIAM.

This is an automobile negligence case in which the defendant admitted liability, a hearing in damages was had to the court and damages were assessed for injuries to person and property. Much of the appeal has to do with claimed corrections in the finding. No change can be made in it which would avail the defendant. The principal claim is that the complaint did not allege any damages arising after its date, except as to the loss of use of the automobile, but that the court nevertheless allowed such damages.

All the damages awarded by the court were of such a nature that they were in general within the allegations of the complaint, and the allowance of items occurring after the date of the writ did not constitute a departure from those allegations in a ‘matter essential to the charge or claim’ which would render the judgment awarding them invalid. Frosch v. Sears, Roebuck & Co., 124 Conn. 300, 303, 199 A. 646. There was at most a variance. If the variance was material, the question should have been raised when the evidence was presented. This was not done, and so no oportunity was given to the plaintiff to make his pleading, if insufficient, conform to the proof. The entire evidence was received without any objection on the ground of variance between allegation and proof. No motion was made to strike out any evidence on the ground that it was not within the issues. It is now too late to raise such a point on appeal. Scott v. Scott, 83 Conn. 634, 641, 78 A. 314, 21 Ann.Cas. 965; Sasso v. K. G. & G. Realty & Construction Co., 98 Conn. 571, 577, 120 A. 158; Booth v. Booth & Bayliss Commercial School, Inc., 120 Conn. 221, 230, 180 A. 278, 99 A.L.R. 1517.

On the same principle, the defendant cannot now claim error in the allowance in the judgment of lost earnings under the allegation...