157 A. 644 | Conn. | 1931
These are companion cases, growing out of the same automobile collision, each brought against the named defendant and Elsie A. Bissing, and were *73
tried together. In the request for a finding there are a number of questions discussed which are not included in the statement of the questions of law sought to be reviewed. This statement, which is required by Practice Book, p. 311, § 18, is for the guidance of the court in making up its finding of facts and indicates to opposing counsel the questions they must be prepared to meet. We consider those assignments only which relate to the questions listed in the request for a finding, and one of these, which is common to both cases, is whether Harry Bissing was the agent of Elsie A. Bissing. Corrections are sought in the finding bearing on this subject. The record discloses not that we have here a conflict of evidence, but that the witnesses do not disagree in any essential particular as to the circumstances. It appears that the car which the defendant Harry Bissing was driving was owned by him and had been bought for the express purpose of his use in the performance of a contract he had as engineer and builder, in the construction of a house and the development of an estate for a customer at Cornwall Bridge. He drove the car back and forth from his home to his work and to transfer material, tile, bricks and whatever was necessary for the work in hand; at the time of the collision he was thus transporting some material in furtherance of this work. His wife, Elsie A. Bissing, owned and conducted a poultry and egg farm; he did not always take eggs which she sent to Torrington, but frequently did so Thursdays, at which time he also did marketing for her; at the time of the accident, which was on a Monday, he had in his car, beside his own building materials, some eggs in cases, which he was to deliver in Torrington for his wife; his family consisted only of his wife, and she never drove the car, nor did she in any way control it at the time of the collision. The *74
finding as made should be amplified by such further subordinate facts as we have detailed. The trial court concluded that the transporting of his building materials by this defendant "was merely an incident of the trip." Upon the finding as we have amended it, it could not logically or reasonably be so held. The use of his own car for the very purpose for which he had purchased it was the main purpose of this trip, and the carrying of the eggs was an incidental feature of the situation. It was no more than an accommodation by him as the husband, since he was going to Torrington on his own business that day. It necessarily follows that Harry Bissing was not as matter of law the agent, servant or employee, of Elsie A. Bissing, and the judgment against the latter was erroneous and must be reversed in both cases. Lassen
v. Stamford Transit Co.,
We take judicial notice of the statutory provisions of other States. General Statutes, § 5599; Tuttle v.Jockmus,
For the purposes of the present appeal, it is sufficient to note that the statute law of this State at the time of the collision in question, contained no provision that an unlicensed driver could not recover, as formerly contained in the General Statutes, Revision of 1918, § 1565, and Chapter 400 of the Public Acts of 1921. We have had occasion to consider the effect of failure to indorse an operator's license, and said: "An operator's license is purely a personal privilege granted by the State on account of fitness. Shea v.Corbett,
If we turn to the decisions in Massachusetts, it is made manifest that, notwithstanding the statutory provision in that State requiring indorsement as a prerequisite of validity, the holder is not necessarily denied recovery. "We think that the operation of a car without a license, while it is a punishable act, does not render the operator a trespasser on the highway, but that the illegal element in the act is only the failure to have a license while operating it, so that if the operation and movement contributed to the accident with which the want of a license had no connection, except as a mere condition, they would not preclude the operator as a plaintiff from recovery. If the illegal quality of the act had no tendency to cause the accident, the fact that the act is punishable because of the illegality, ought not to preclude one from recovery for harmful results to which, without negligence, the innocent features of the act alone contributed."Bourne v. Whitman (1911)
The remaining question relates to the assessment of damages, as to which, the only claim pursued in the brief, is that there was error in arriving at the loss of the use of the automobile, in that the court did not take into consideration the services of the driver, citing as authority for this claim Mastrianni v.Apothecaries Hall Co.,
There is error; the judgment against Elsie A. Bissing is reversed in each case, and the causes are remanded to the Superior Court with direction to enter judgment for Elsie A. Bissing in each case for her costs, otherwise to stand as rendered.
In this opinion the other judges concurred.