Messenger v. Howard Amusement Co.

Connecticut Appellate Court

Messenger v. Howard Amusement Co.

251 A.2d 519, 5 Conn. Cir. Ct. 344, 1968 Conn. Cir. LEXIS 216

CourtConnecticut Appellate Court

DecidedOctober 23, 1968

DocketFile No. CV 2-687-62199

StatusPublished

This text of 251 A.2d 519 (Messenger v. Howard Amusement Co.) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Messenger v. Howard Amusement Co., 251 A.2d 519, 5 Conn. Cir. Ct. 344, 1968 Conn. Cir. LEXIS 216 (Colo. Ct. App. 1968).

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Opinion

Wise, J.

In this action, the plaintiff seeks to recover for injuries sustained as a result of the negligence of the defendant. In paragraphs 3 and 4 of the complaint, the plaintiff alleges she was an “invitee.” The defendant filed the instant motion to expunge the word “invitee” “on the grounds that such allegation is a conclusion of law and prejudicial to the defendant.”

It is true that where a mere legal conclusion is pleaded without the essential facts to support it being in any way set forth, a motion to expunge it will lie, for the hare assertion of a legal conclusion without facts to support it is immaterial. Antman v. Connecticut Light & Power Co. 117 Conn. 230, 235; Clark v. Grabosky, 14 Conn. Sup. 170, 171. But where the facts are set forth and the legal conclusion is merely the pleader’s claimed construction of those facts, a demurrer, and not a motion to expunge, is the proper remedy to test the sufficiency of the pleading. Katsonas v. W. M. Sutherland Building & Contracting Co., 104 Conn. 54, 68; Donovan v. Davis, 85 Conn. 394, 397; Clark v. Grabosky, supra. The function of a motion to expunge is a very limited one, and the purpose served is rarely a useful one. LaFrance v. LaFrance, 127 Conn. 149, 154. It is not designed to test substantial rights.

Predicated on the allegations of paragraphs 3 and 4 of the complaint, the plaintiff has set forth facts upon which her claimed conclusion that she was an “invitee” is based. Her claimed conclusion may he [346]*346erroneous but it is not immaterial, nor is it prejudicial to tbe defendant. Whether it is erroneous cannot be attacked by a motion to expunge. It cannot be determined in advance what trend the evidence will take at the trial. To sustain the motion to expunge could prejudice the plaintiff on the facts developed at the trial; to deny the motion cannot harm the defendant.

The motion is denied.

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Wise, J.

In this action, the plaintiff seeks to recover for injuries sustained as a result of the negligence of the defendant. In paragraphs 3 and 4 of the complaint, the plaintiff alleges she was an “invitee.” The defendant filed the instant motion to expunge the word “invitee” “on the grounds that such allegation is a conclusion of law and prejudicial to the defendant.”

It is true that where a mere legal conclusion is pleaded without the essential facts to support it being in any way set forth, a motion to expunge it will lie, for the hare assertion of a legal conclusion without facts to support it is immaterial. Antman v. Connecticut Light & Power Co. 117 Conn. 230, 235; Clark v. Grabosky, 14 Conn. Sup. 170, 171. But where the facts are set forth and the legal conclusion is merely the pleader’s claimed construction of those facts, a demurrer, and not a motion to expunge, is the proper remedy to test the sufficiency of the pleading. Katsonas v. W. M. Sutherland Building & Contracting Co., 104 Conn. 54, 68; Donovan v. Davis, 85 Conn. 394, 397; Clark v. Grabosky, supra. The function of a motion to expunge is a very limited one, and the purpose served is rarely a useful one. LaFrance v. LaFrance, 127 Conn. 149, 154. It is not designed to test substantial rights.

Predicated on the allegations of paragraphs 3 and 4 of the complaint, the plaintiff has set forth facts upon which her claimed conclusion that she was an “invitee” is based. Her claimed conclusion may he [346]*346erroneous but it is not immaterial, nor is it prejudicial to tbe defendant. Whether it is erroneous cannot be attacked by a motion to expunge. It cannot be determined in advance what trend the evidence will take at the trial. To sustain the motion to expunge could prejudice the plaintiff on the facts developed at the trial; to deny the motion cannot harm the defendant.

The motion is denied.

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Bluebook (online)

251 A.2d 519, 5 Conn. Cir. Ct. 344, 1968 Conn. Cir. LEXIS 216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/messenger-v-howard-amusement-co-connappct-1968.

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