(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 *545negligence 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 *546and 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.