Blake v. New England Survey Service, Inc.

The plaintiffs sued the defendant New England Survey Service, Inc., hereinafter referred to as Survey Service as the owner, and the defendant Joseph S. Ullian, as the operator, of an automobile which collided with one owned and operated by another defendant, Arthur J. Ricker, in which the plaintiffs were riding as passengers.

The complaint contained no allegation that Ullian was the agent of the defendant Survey Service nor that he was then acting in the course and scope of any authority conferred on him by Survey Service. Indeed it alleged no legal relationship between Ullian and Survey Service except the ownership of the automobile by Survey Service and its operation by Ullian.

The defendant Survey Service demurs because of the lack of any such allegation of legal relationship between itself and Ullian.

The effect of the statute (General Statutes § 7905) is to make proof of ownership and operation sufficient, in the absence of explanatory evidence, to prove actionable agency at the time in question. Smith v. Furness, 117 Conn. 97, 102; Leitzes v. F. L.Caulkins Auto Co., 123 Conn. 459, 462. It therefore cannot be said that no cause of action against the defendant Survey Service could be proven under the allegations made, since these suffice to bring the statutory presumption into the case. It follows that the demurrer must be, and is, overruled. Folwell v. Howell,117 Conn. 565, 568.

It is true that allegations along the line of those omitted are essential to a properly drawn complaint. Leitzes v. F. L. CaulkinsAuto Co., supra, 464. For instance, under the method of pleading adopted by the plaintiffs, there is no allegation of agency to be admitted or denied by the defendant Survey Service in its answer and consequently the plaintiffs are left without any knowledge from the pleadings as to whether agency is to be admitted or controverted. Thus the plaintiffs are required to go to the expense and inconvenience of having available all of their evidence on the issue of agency even though it may turn out to be uncontested.

The plaintiffs placed some reliance on Practice Book § 118; onVincent v. Alexander's Sons Co., 85 Conn. 512, 516, and onBanks v. Watrous, 134 Conn. 592, 597. These contain nothing which meets the situation here. It is obvious that a corporation can in its inherent nature act only through the instrumentality of human beings. The plaintiffs must prove that the car in question was being driven by the defendant Ullian as the then authorized agent of Survey Service acting within the scope of his authority. On this issue the risk of nonpersuasion is always on the plaintiff and never shifts. The statute merely provides that under certain circumstances a permissible inference of agency may be drawn, and must be drawn if no explanatory evidence is offered by the defendant. Under our system of pleading a complaint which states a cause of action is not demurrable, even though it may be subject to improvement. Burritt v. Lunny,90 Conn. 491, 495.

The demurrer is overruled.