Imágenes de páginas
PDF
EPUB

(108 A.)

The judgment of the Superior Court is affirmed, and the appeal is dismissed at the cost of appellant.

(94 Conn. 257)

construction of reservoirs, laying of pipes, etc., [ of such additional system would be the duin turn involving duplication of inconvenience plication of maintenance charges the public to the public in tearing up streets and mak- must ultimately bear, is an "unreasonable ing excavations without proportionate bene- regulation" within the meaning of the Confits. The duplication of telephone systems in stitution. No policy of the Constitution is a given locality without connection between violated by the statute, and, furthermore, their lines requires subscribers to install both the basis of the action of the commission is systems and pay for double service to reach the interest of the public as distinguished subscribers on but one of the two systems; from the interest of the corporation or inor, as frequently happens, subscribers main- dividual making the application. tain both systems when they can reach other users with equal facility on either system. It is useless to argue that the cost of construction of such duplicate system is paid by investors, and the risk of financial failure is theirs, since the burden of finally paying the carrying charges and income to the investors is imposed upon the public with the result that a higher charge on the part of each competing company becomes necessary, due to the division of the patronage of the public. This is especially true in the smaller cities and country districts where the public to be served is limited in numbers. To hold, therefore, that public policy, as indicated by the section of the Constitution in question, was intended to permit the construction of competing lines under any and all conditions without inquiry into the character of the territory to be served and the existence in the locality of facilities adequate to accommodate the public, would amount to a destruction of the very object the policy is designed to establish.

KEARNS v. WIDMAN.
(Supreme Court of Errors of Connecticut.
Dec. 22, 1919.)

1. MUNICIPAL CORPORATIONS 706(10)—Ex-
EMPLARY DAMAGES AUTHORIZED FOR GROSS
NEGLIGENCE OF AUTOMOBILE DRIVER AP-
PROACHING STREET CAR.

at a reckless rate of speed toward the trolley
Where the driver of an automobile operated
car from which plaintiff was alighting, and,
though she saw the trolley car and plaintiff,
gave no warning of approach, and failed to
slacken speed, or to stop, or even try to, but
actually increased speed and ran plaintiff down,
the case was one of gross and culpable negli-
gence, sustaining claim for exemplary damages.
2. MUNICIPAL CORPORATIONS 706(1)—SPE-

CIFIC NEGLIGENCE IN OPERATION OF AUTOMO-
BILE SHOULD BE PLEADED.

In an action against the driver of an automobile for injuries to plaintiff when run down, the specific acts or circumstances of negligence should be pleaded.

3. PLEADING 433(8) — COMPLAINT MAKING GENERAL ALLEGATIONS OF NEGLIGENCE SUFFICIENT AFTER JUDGMENT.

[3] In passing the Public Service Company Law of 1913, the Legislature apparently had in mind the fact that with respect to certain public service facilities the construction of competing lines must at times tend to impose additional burdens on the public without proportionate benefits, and accordingly placed on telephone companies the duty of transmiting messages without unreasonable interruption or delay, and also the further duty of making connection with the lines of other companies for the interchange of conversation at such times and places as it could be done conveniently, without injury to the other company, and when necessity existed for such union. Article 5, § 9, of the act contains a similar provision investing the Public Service Commission with power to require connec-4. APPEAL AND ERROR 1004(2)-FINDINGS tion of systems and facilities. By another ON CONFLICTING EVIDENCE ARE CONCLUSIVE.

section the commission is authorized to in

quire into and regulate rates charged by public service companies. We thus have express legislative provisions for preventing undue burdens being imposed upon the public in the way of excessive rates by companies having no competition in districts supplied by them; consequently we cannot say a refusal by the Public Service Commission to approve an application for the construction of a competing telephone system in a district already served at rates the commission has full power to control, and when practically the sole result

In an action for injuries to plaintiff, run down by defendant's automobile, generalizations in the complaint of defendant's gross negligence in operating the car after judgment for plaintiff would be sufficient to support it, since an attack on the complaint for such reason must be made before issue is joined, and if the general allegation of negligence is followed by proof of specific acts, it is too late to question the pleading after judgment.

Where, on the issues of fact surrounding

plaintiff's claim for exemplary damages, there
was room for reasonable differences of opinion
among fair-minded men, such issues were for
the jury, and are not for the appellate court.
5. APPEAL AND ERROR 362(1)-ASSIGNMENT
NOT INCLUDED IN GROUNDS OF APPEAL IS
NOT REVIEWABLE.

An assignment of error that the verdict should be set aside because an atmosphere of prejudice and partiality enveloped the trial, which is not among the grounds of appeal, is not before the Supreme Court of Errors.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Appeal from Superior Court, New Haven | tions of gross negligence would, after judgCounty; Joel H. Reed, Judge. ment, suffice to support it.

[blocks in formation]

reason must be made before issue is joined An attack upon the complaint for such a of negligence is followed by proof of speon the pleadings. If the general allegation cific acts of negligent conduct, it is too late, after verdict and judgment, to question the judgment. Eckert v. Levinson, 91 Conn. 338, 341, 99 Atl. 699.

Our examination of the evidence leads us to the conclusion that the preponderance of the evidence supports those allegations of the complaint which make out a case for exemplary damages.

WHEELER, J. The principal ground of appeal which is pressed upon the brief of the defendant is that the question of exemplary damages should not have been submitted [4] The plaintiff is right in her position

to the jury, because neither the allegations of the complaint nor the evidence before the jury warranted its submission.

The complaint alleges that the injuries sued for were caused by the operation by the defendant of an automobile at so high and reckless a speed that she was unable to apply the brakes thereon and to stop the automobile after she saw the plaintiff alight from the car in time to prevent the automobile from running over her. And, further, that the defendant' failed to sound a horn or give any other warning of her approach, and failed to keep a proper lookout for persons lawfully on the highway, and failed to stop the car, in violation of the statute, after she saw the plaintiff in a position of danger at the intersection of Elm street and Broadway, two streets in New Haven.

As a result of these acts of negligence the automobile ran over the plaintiff while she, in the exercise of due care, was alighting from this trolley car, and the defendant thereby "acted and proceeded with culpable indifference and flagrant and gross recklessness, carelessness, and negligence."

[1] The operation of an automobile at so reckless a rate of speed that, although the driver of the automobile saw the plaintiff in

that the most the defendant can possibly claim is that the evidence was conflicting, and as to the issues of fact surrounding the claim for exemplary damages there was "room for a reasonable difference of opinion among fair-minded men, and hence these issues must be determined by the jury and not the court."

[5] The defendant's further assignment of error that the verdict should be set aside because an atmosphere of prejudice and partiality enveloped the trial and prevented the defendant obtaining a fair trial is not before us, since it is not among the grounds of appeal, and we may add, if it were before us, we must have held that the occurrence of the trial would not in our judgment, have sustained it.

There is no error.

The other Judges concurred.

(94 Conn. 276)

LIEBERUM v. NUSSENBAUM.

(Supreme Court of Errors of Connecticut. Jan. 8, 1920.)

a position of danger, and although the driver 1. DEEDS 70(7)-IMPROVIDENCE OF TRANS

was approaching a trolley car which had stopped at the intersection of two streets, the driver gave no warning, and failed to slacken the speed of the automobile or to stop it, or even to try to stop it, but actually increased the speed, and ran down the plaintiff, certainly portrays a case of gross and culpable negligence, sufficient, upon proof, to found a claim for exemplary damage.

[2, 3] The defendant assumes that the summarization and characterization of the defendant's acts of gross negligence are the only allegations of negligence. In this, as we have shown, in the recital of the specific acts of negligence, the defendant is mistaken. The specific acts or circumstances of negligence should be pleaded, and are in this complaint. 17 Corpus Juris, p. 1006. But if she were correct these generaliza

ACTION APPARENT FROM AGE AND MENTAL WEAKNESS OF GRANTOR AND INADEQUATE CONSIDERATION.

Where plaintiff, aged 76 years and suffering some mental impairment from age, was induced by her agent, she not comprehending the legal consequences, to deed land for a certain sum in cash and a purchase-money mortgage. providing that, in case it should be desired to increase the amount of an existing first mortgage on the premises to secure funds to remodel the premises, plaintiff would release the purchasemoney mortgage and take back a second mortgage for the amount remaining due, the transaction was improvident on its face. 2. DEEDS

188-ALLEGATION THAT TRANSAC

TION WAS IMPROVIDENT AND DEFENDANT KNEW IT UNNECESSARY WHERE APPARENT FROM THE PAPERS.

In an action to set aside a deed, an allegation that the transaction was improvident is

1

(108 A.)

not necessary, when the improvidence is ap- | defendant and embodied in the purchaseparent on the face of the papers, and it is not money mortgage, and the defendant knew necessary to allege that defendant knew that that she did not comprehend them. Two it was improvident when that is likewise ap- days after the execution of the papers, the parent. plaintiff began this action. Defendant appeals on the ground that the judgment is based on facts not alleged in the complaint and that the allegations of the complaint do not support the judgment.

3. DEEDS 188- ALLEGATION OF MUTUAL MISTAKE UNNECESSARY ON MISTAKE OF ONE PARTY, INDUCED BY THE OTHER OR OF WHICH

HE UNCONSCIONABLY TAKES ADVANTAGE.

An allegation of mutual mistake is not necessary in a suit for cancellation, since relief may be granted when the mistake is on the part of one party only and is induced by the conduct of the other party, or when the other party seeks unconscionably to take advantage of it, as when knowing that the mistaken party did not comprehend the legal consequences of his improvident conveyance.

Robert E. De Forest, of Bridgeport, and Maurice E. Resnick, of Plymouth, for appellant.

Frank M. Canfield, of Bridgeport, for appellee.

4. APPEAL AND ERROR 193(5), 238(3), 719(4) above). [1] The agreement that, if the de

-THAT COMPLAINT WAS DEFECTIVE FOR FAIL-
URE TO MAKE ALLEGATION, NOT OPEN ON AP-
PEAL WHERE NOT PROPERLY PRESERVED.

In a proceeding to cancel deed, objection that complaint contained no allegation that the plaintiff did not comprehend the legal consequences of her conveyance cannot be raised on appeal, where complaint was not demurred to, no motion in arrest of judgment was made, and no error assigned based on such defect in complaint.

Maltbie, J., dissenting.

Appeal from Superior Court, Fairfield County; Howard J. Curtis, Judge.

Action by Kate Lieberum against Jennie Nussenbaum to set aside a deed and for a reconveyance. Judgment for plaintiff, and defendant appeals. No error.

The

BEACH, J. (after stating the facts as fendant desired to increase the first mortgage, plaintiff would release her purchasemoney mortgage for that purpose and take back a second mortgage in its place, is improvident on its face. In the absence of any definite agreement by the defendant to apply the proceeds towards enhancing the security, it would enable the defendant, on the pretext of desiring to remodel the premises, to deprive the plaintiff of her security to the extent that the defendant might be able to induce any third person to loan money on the property. Plaintiff did not comprehend the legal consequences of the transaction at the time, and brought this action two days after the execution of the papers and before any intervening rights or equities could possibly arise. All of the assignments of error based on the ground that the court erred in holding the transaction improvident are overruled.

[2] Broadly speaking, the remaining question is whether on this record the plaintiff is entitled to a judgment setting aside the deed and for a reconveyance. It is objected that there is no allegation that the transaction was improvident; but none is necessary when, as in this case, the improvidence is apparent on the face of the paper. For the same reason it was not necessary to allege that the defendant knew that the transa ction was improvident.

Plaintiff employed a real estate agent to procure a purchaser for the property in question at the agreed price of $67,240. property was subject to a first mortgage for $2,000 and to a lien for assessment of special benefits. The agent applied to the defendant, who offered to purchase the property for $67,240 on the terms of paying $1,000 in cash and giving back a mortgage for the balance of the purchase price, less outstanding liens, with the remarkable proviso that, in case the mortgagee should desire to increase the amount of the first mortgage for the purpose of securing funds to remodel the premises, the plaintiff would release the purchase-money mortgage and take back a second mortgage containing the same provisions for the amount then remaining due. Both the defendant and the agent knew that these terms were improvident for the plaintiff to accept. The agent, in order to secure a commission, undertook to procure the plaintiff's consent. Plaintiff was 76 years old and suffered from some mental im- The mistake of one only of the parties, due pairment caused by age. She had no advice to a failure to comprehend the legal conseor counsel at any stage of the transaction. quences of the transaction, is not of itself She did not comprehend the legal effect and a ground for cancellation. Relief is granted consequences of the terms proposed by the in such cases only when the mistake is in

[3] The defendant points out that there is no allegation of mutual mistake, but none is necessary in a suit for cancellation. “The mistake of one only of the parties inducing him to sign a contract which, but for the mistake, he would not have entered into, may be a ground in some cases for canceling the contract, but it cannot be a ground for a reformation of it." Snelling v. Merritt, 85 Conn. 83-101, 81 Atl. 1039–1046.

For other cases see same topic and KEY. NUMBER in all Key-Numbered Digests and Indexes

duced by the conduct of the other party, or when he seeks unconscionably to take advantage of it. 16 Cyc. 69; Taylor v. Atwood, 47 Conn. 498. In this case that necessary element is supplied by the finding that the defendant knew that the transaction was improvident and knew at the time when the papers were executed that the plaintiff did not comprehend the legal consequences of her act.

[4] The only defect apparent on the face of the record is the want of any express allegation in the complaint that defendant knew that the plaintiff did not comprehend the legal consequences of her act. On the other hand, the complaint was not demurred to; the court has found the fact; there is no claim that this finding was made without evidence; no record of any objection to the evidence on which it was based; no motion in arrest of judgment; and no assignment of error based on the failure to allege that defendant knew the plaintiff failed to comprehend the legal consequences of her act. On this state of the record, the question is not open on appeal.

We do not treat the averment and finding that the plaintiff's agent betrayed his principal in order to secure a commission as any part of the plaintiff's case against the defendant, and for that reason it is unnecessary to refer to the remaining assignments of

error.

There is no error.

Judgment for a sum of money was rendrendered against McLay, the present plaintiff, as the defendant in an action brought by Hubert E. Warner, Jr., and on a claim which the latter had meanwhile assigned to Frank A. Warner. McLay was duly notified of the assignment. Three different actions have been brought and are now pending against Hubert E. Warner, Jr., in each of which McLay has been garnisheed as Warner's debtor. The several plaintiffs therein claim that the assignment of the claim was without consideration and void. McLay makes no claim to the amount of the judgment secured against him, and has offered to turn it over to the assignee upon the lat-· ter's furnishing a bond to save him harmless from other claims to the judgment debt. This has been refused by the assignee, who has also caused McLay to be notified of the appointment by him of an attorney to take out execution on the judgment. The plaintiff asks, in substance, that the defendants, who are the two Warners and the plaintiffs in the three pending actions referred to, be enjoined from pursuing their claims against the judgment debt in the actions already brought by them, that the Warners be restrained from taking out execution on the judgment referred to, and that the parties be ordered to interplead as to their claims. The court denied both the application for an injunction and that for an order of interpleader, and the plaintiff assigns error

The other judges concurred, except MALT- upon these rulings. BIE, J., who dissented.

(34 Conn. 193)

McLAY v. MONTOWESE BRICK CO. et al.

(Supreme Court of Errors of Connecticut. Dec. 22, 1919.)

INTERPLEADER 2-JUDGMENT DEBTOR AND GARNISHEE NOT ENTITLED TO THE REMEDY.

Arthur B. O'Keefe and John Cunliffe, Jr., both of New Haven, for appellant. Carl A. Mears and Bertram Weil, both of New Haven, for appellees.

CASE, J. (after stating the facts as above). McLay stands in the relation of judgment debtor to some of the defendants, and in that of garnishee as to the rest. None of the relief asked for is necessary to secure him against action prejudicial to his rights While Gen. St. 1918, § 6055, extends the in the first position. The provisions of secfield for relief by interpleader, it does not per- tion 5931 of the General Statutes make a mit the substitution of that procedure for any stay of execution on the judgment against existing legal remedy equally efficacious; so a him imperative so long as either of the forjudgment debtor may not have interpleaded eign attachments of the judgment debt conthe judgment creditor, a claimant of the judg- tinues in existence. The statute carefully ment by assignment, and persons who have gar-anticipates the precise contingency which he nisheed him as debtor of the judgment creditor; he being fully protected in his relation of judg-professes to fear, and he is fully protected ment debtor by section 5931, and in his position of garnishee by sections 5967 and 5973.

Appeal from Court of Common Pleas, New Haven County; Earnest C. Simpson, Judge. Suit by James McLay against the Montowese Brick Company and others for injunction and an order to interplead. From an adverse judgment, plaintiff appeals. Affirmed.

against further action by either of the Warners during the life of any of the liens which has attached to the judgment debt through the suit of a creditor.

safeguarded from the possibility of having In his position of garnishee he is equally to satisfy claims in excess of the amount of the judgment recovered against him. Sections 5967 and 5973 of the General Statutes provide effective measures for his security,

(108 A.)

in the event of scire facias proceedings be- [ amount of the security for that series, having ing brought against him, where there are paid certain bonds before it had made default claimants to the fund other than the judg- by suspending payment, and before receivers ment creditor in the principal action. When were appointed for it, but being unable to he has complied with the simple require- under Gen. St. 1918, § 6083, representing the surrender them before such events, the receivers, ments of the statute for notice to such ad- company, thereafter offering to surrender them, verse claimants, any judgment that may be and making demand, are entitled to receive for rendered against him on scire facias con- general creditors, not specific securities which clusively measures his liability, and operates have not depreciated, while others have, but a as a bar to the prosecution of other or fur- dividend proportional with the holders of other ther claims. bonds of the series; the securities having been liquidated by the trustee under order of court, and being insufficient to pay all the bonds in

full.

DEPOSIT COLLATERAL FOR BONDS WITHIN
AGREEMENT OF BOND COMPANY AND TRUSTEE

OF COLLATERAL.

Certificates of deposit placed in the hands. of trustee as a substitute for maturing collateral desired to be taken out of the trust agreement and collected held collateral within agreement of company issuing bonds with trustee holding collateral as security.

It is obvious, therefore, that no emergency calls upon him to take the initiative for his own protection or in the interest of fair play to the several defendants. None of them 2. CORPORATIONS 474 CERTIFICATES OF is in a position either to gain an undue advantage of him or to block the efforts of the others in the orderly prosecution of their respective claims. While the act of 1893 (General Statutes, § 6055) distinctly extended the field for relief by interpleader, it is not to be construed as permitting the substitution of the procedure for any existing legal remedy equally efficacious. The primary test that existed before the passage of that Case Reserved from Superior Court, Midremedial act still applies with its original dlesex County; Lucien F. Burpee, Judge. force, and, since the legal remedy is adequate and complete for the situation pre-receivers of the Middlesex Banking Company, Action by Silas A. Robinson and others, sented upon the record, no occasion is shown against the Security Trust Company, trustee, for invoking equitable relief. to recover securities under a trust agreement in the nature of a mortgage. Reserved by the court on an agreed statement of facts for the advice of the Supreme Court of Errors. Judgment advised for plaintiffs.

The main question presented by the appeal was suggested by the court in Coit v. Sistare, 85 Conn. 573, 575, 84 Atl. 119, Ann. Cas. 1913C, 248. Interpleader had there been resorted to in a situation essentially similar to that which exists here, but, as none of the parties questioned the fitness of the procedure, the court passed the matter in deciding the case. Here the plaintiff's right to the relief sought is seasonably questioned on the threshold of the case, and before any interlocutory order has been permitted to issue. Considerations which influenced the court's course in that case are wholly absent from this, and for the reasons indicated the trial court properly denied the application.

There is no error.

The other Judges concurred.

(94 Conn. 94)

ROBINSON et al. v. SECURITY TRUST CO. (Supreme Court of Errors of Connecticut. Dec. 22, 1919.)

1. CORPORATIONS

561(1)-RECEIVERS OF BOND COMPANY WHICH BEFORE INSOLVENCY PAID CERTAIN BONDS ENTITLED TO SHARE IN

COLLATERAL FOR THE SERIES.

A corporation issuing bonds under an agreement whereby it deposits with a trustee securities for each series of bonds of the face value of the bonds, with right on surrender of any bond to select and withdraw a proportional

June 2, 1897, the Middlesex Banking Company entered into an agreement with the Security Company (now Security Trust Company) under which the Security Company agreed to act as trustee of such collateral as the Banking Company might deposit as the security for sterling bonds proposed to be issued by the Banking Company. This agreement recited in the whereas clauses that the Banking Company intended to issue coupon bonds in series of different denominations, bearing different dates of issue and maturity. The form of the bond is set out and contains the following provision, viz.:

"This bond is one of a series of bonds of like form and tenor issued by said the Middlesex Banking Company under and subject to the provisions of a certain agreement between the Middlesex Banking Company and the Security of Hartford, Conn., as trustee, dated and said the Middlesex Banking Company, in order to secure the payment hereof and of all other bonds of said series, has deposited with the Security Company as trustee, and in trust for the benefit of the lawful holders of the bonds of said series, certain notes, obligations, assignments, mortgages, or deeds of trust payable in gold coin of the United States of the present standard of weight and fineness, equal in amount, at the rate of $4.867 to the pound sterling to the bonds so issued, and such securities are guaranteed by said the Middlesex Banking

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

« AnteriorContinuar »