65 A.2d 479 | Conn. | 1949
Lead Opinion
The plaintiff brought this action to recover for personal injuries and for damage to his automobile sustained at a street intersection in New Haven on May 23, 1945, in a collision between his car, which he was driving, and that of the defendant Hennessey, driven, it was alleged, as a family car by his daughter, the defendant Wolff. Each defendant filed an answer denying the principal allegations of the complaint and alleging contributory negligence as a second defense, and a counterclaim. The court rendered judgment against both defendants for the plaintiff to recover on his complaint, and in favor of the plaintiff on the counterclaims. An appeal was filed by counsel for the defendants, *430 but the papers were so carelessly drawn as to render it uncertain whether the appeal had been taken by one or both. By the brief of the defendant Hennessey, hereinafter called the defendant, the appeal is now restricted to him.
Error is assigned in the court's failure to find that the defendant had made the claims of law "appearing in" the questions of law stated in his request for a finding. In the draft finding the defendant failed to state his claims of law made in the trial court with the court's rulings thereon, as required by the rules. Practice Book 342 and Form No. 645(A). The court might properly have called counsel's attention to this omission and afforded opportunity to remedy it. Carlson v. Robertson,
No error is assigned as to any fact found or any conclusion reached by the court. The only error assigned, aside from that complaining of the omission of the claims of law, is that the court erred "in holding that the so-called `family car doctrine' was applicable to the defendant Hennessey, when the defendant-driver, Katherine H. Wolff, his daughter, had her husband's automobile for her own use and who resided with her own immediate family, in another town and county, and who was not living in the defendant John J. Hennessey's household at the time of the collision and who had not lived there for several years prior thereto." In support of his claim under this assignment, the defendant urges that, to constitute one a member of the car owner's family in the sense requisite to liability under the family car doctrine, it is essential, although consanguinity is not necessary, that one be a member "of a collective body of persons living in one household and under one head and government." The contention of the defendant boils down to this: Since the defendant Wolff was living in a separate home of her own and so was not one of those constituting his household, he could not be held liable under the family car doctrine. He has referred to authorities which it is claimed support this proposition. In the view which we take of the question as presented upon the record before us, it is unnecessary to consider the general principle which the defendant advocates. The question is whether upon this record the facts found are sufficient to support the conclusion that the defendant is liable under the family car doctrine.
This is a summary of the material facts: The defendant *432 owned the car which his daughter negligently operated on May 23, 1945, and which collided with the plaintiff's car. At the time, the daughter was driving her mother to the home of the latter and the defendant in Ansonia where the car was kept. As she approached the intersection where the collision with the plaintiff's car occurred, she was being directed by her mother as to the route to take to Ansonia. Earlier that day she had driven her mother to New Haven to visit with friends of the latter, and they were returning from a shopping trip when the accident happened. The defendant Wolff was married August 1, 1942. In May, 1945, she resided in Huntington, Connecticut. Her husband was in the armed services. Before her marriage she lived with her parents at their residence in Ansonia, and she had general authority to drive the defendant's car both before and after her marriage, particularly when her mother, who was unable to drive, desired to use the car. The car was maintained by the defendant as a family car, and his wife and daughter had general authority to use it. A further fact found, undisputed except for the indirect challenge involved in the defendant's assignment of error quoted above, was that the car was being used as a family car at the time of the collision.
The court's conclusion that the defendant failed to sustain the burden of rebutting the presumption raised by 1658c of the Cumulative Supplement of 1935 (Rev. 1949, 7904) indicates a misconception as to the effect of the statute. As was stated in O'Dea v. Amodeo,
The ultimate question is therefore whether under the circumstances shown by the finding the fact that the defendant's daughter was not a member of his household renders the family car doctrine inapplicable. The doctrine, as we have repeatedly stated, is: ". . . when an automobile is maintained by the owner thereof for the general use and convenience of his or her family, such owner is liable for the negligence of a member of the family, having general authority to drive the car, while it is being used as such family car, that is, for the pleasure or convenience of the family or a member of it." Haugh v. Kirsch,
"The rule rests on the broad ground that every man who prefers to manage his affairs through others, remains bound to so manage them that third persons are not injured by any breach of legal duty on the part of such others while they are engaged upon his affairs and within the scope of their authority"; and "when a paterfamilias maintains an automobile for the pleasure, use and convenience of his family and in pursuance of such purpose authorizes members of his family to use it for such purpose, he by so doing makes such pleasure uses his affair, and constitutes members of the family so operating the car his agents engaged in the prosecution of his affairs." Stickney v. Epstein, supra, 179. A vital element in the application of the rule "is the scope of the intended use of the car." Durso v. A. D. Cozzolino, Inc., supra, 30. It "applies where the member of the family who is using the car is carrying out the very purpose for which the owner maintained it." Slattery v. O'Meara,
There is no error.
In this opinion MALTBIE, C.J. and JENNINGS, J., concurred; ELLS, J., concurred in the result.
Dissenting Opinion
I dissent. Dudley v. Deming,