# Farm Bureau Mutual Automobile Insurance v. Kohn Bros. Tobacco Co.

> Supreme Court of Connecticut · August 3, 1954 · 141 Conn. 539

URL: https://www.frixlaw.com/law-library/cases/6588629

## Case

- **Full name:** Farm Bureau Mutual Automobile Insurance Company v. Kohn Brothers Tobacco Company, Inc.
- **Court:** Supreme Court of Connecticut
- **Decided:** August 3, 1954
- **Citations:** 141 Conn. 539; 107 A.2d 406; 1954 Conn. LEXIS 225
- **Precedential status:** Published
- **Opinion:** Dissent by Daly
- **Judges:** Daly, Wynne
- **Cited by:** 51 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6588629

## How later opinions describe it (automated extraction)

- holding that a lessor could recover from the lessee for the damages incurred as a result of an accident caused by the negligence of the lessee's employee
- holding that § 2479, now § 14-154a, imposes the same liability on the lessor of a vehicle as the law imposes upon the operator of the vehicle
- holding the employer of an injured employee liable to a third-party for indemnification based on their lessee-lessor relationship

## Opinion text

Daly, J.
(dissenting). The majority base their reasoning and decision upon the theory that the truck was being operated by the servant and agent of the defendant. This has been gleaned, not from the finding of the trial court in this case, but by taking judicial notice of the contents of the file of the case in which Dorothy Lee was the plaintiff and Silverherz, the plaintiff’s assured, was the defendant.
The trial court did not find that a person who was the agent and servant of the defendant was operating the truck and that his negligent operation of it caused the injuries to Dorothy Lee. It found that the defendant “was operating” it “and did so negligently operate it as to cause injury to one Dorothy M. Lee.” The court did not conclude that the liability of the plaintiff’s assured to Dorothy Lee resulted from the *545 negligence of the defendant’s agent and servant. It concluded that the liability “resulted from the negligence of the defendant.” To take judicial notice is a function of the court in the exercise of appellate as well as original jurisdiction. McCleave v. John J. Flanagan Co., 115 Conn. 36, 38 , 160 A. 305 . Material facts, however, cannot be added now to those found by the trial court in its finding. “In every trial which may result in an appeal to this court, it is the duty of each party, so far as he is able, to see that whatever is material to support his contentions is proved and found. If he content himself with bringing forward only so much as he may deem sufficient to meet those of his adversary, he must be prepared, should an appeal be taken on either side, to have it decided with reference to no other facts than those apparent on the record.” Coughlin v. McElroy, 72 Conn. 444, 447 , 44 A. 743 ; Lamenza v. Shelton, 96 Conn. 403, 413 , 114 A. 96 . “Where the subordinate facts are . . . partially omitted from the finding, we have no recourse save to determine this issue upon the facts as found.” Hayward v. Plant, 98 Conn. 374, 381 , 119 A. 341 . “As we said in Hayward v. Plant, [supra, 383 ]: ‘The conclusion [of the court] must be tested by the facts as found.’ That is, by the subordinate facts as found by the trial court and corrected by us, if corrections are made.” Dexter Yarn Co. v. American Fabrics Co., 102 Conn. 529, 540 , 129 A. 527 . “A finding unattacked is presumed to contain all relevant facts, and if the finding fails to state all the material facts, the Supreme Court must nevertheless decide the case upon the basis of those which do appear.” Maltbie, Conn. App. Proc., § 73. In the instant case the facts were stipulated by the parties, and the court found them as stipulated. No corrections of the finding have been requested *546 and none have been made. The confusion and difficulties which will result in future appeals as a result of the addition of material facts in this case are apparent.
As the trial court did not find that the operator of the truck was the agent and servant of the defendant and that his negligent operation of it caused the injuries, I cannot and do not agree that the defendant is liable.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6588629. Public record. Not legal advice.