38 Conn. App. 852 | Conn. App. Ct. | 1995
The plaintiff appeals from the trial court’s judgment, rendered after a jury verdict, in favor of the defendants Paul Markie, Paul Markie doing business as Markie Motors, and T.K. Sales, Inc.
Pursuant to § 52-182, proof that the operator of a motor vehicle was the husband, wife, father, mother, son or daughter of the owner raises a presumption that the motor vehicle was being operated as a family car within the scope of a general authority from the owner. The burden then shifts to the defendant to rebut this presumption.
At trial, the court instructed the jury on the family car doctrine as a basis for the defendants’ liability pursuant to § 52-182.
“Where a claimed error of a nonconstitutional nature is not brought to the attention of the trial court, appellate review of that claim is available only if it constitutes plain error.” Aksomitas v. Aksomitas, 205 Conn. 93, 97, 529 A.2d 1314 (1987); see also Practice Book § 4185.
We have consistently held that plain error review is necessary where the trial court, in its instruction, overlooks a clearly applicable statute; State v. Hinckley, supra, 198 Conn. 88; State v. Burke, 182 Conn. 330, 331-32, 438 A.2d 93 (1980); Hartford Federal Savings
Our Supreme Court’s decision in Jancura v. Szwed, 176 Conn. 285, 407 A.2d 961 (1978),
The defendants claim that the trial court’s failure to instruct the jury on the statutory presumption was not plain error. They contend that any error committed was harmless since there was sufficient evidence in the record to rebut the presumption that Douglas was acting under the general authority of the defendants. The defendants principally rely on the jury’s answer to the third special interrogatory relating to the family car doctrine. In response to the question, “Do you find that Douglas Markie had a general authority to use the car at the time of the accident?” the jury answered “No.” The defendants assert that the jury’s answer demonstrates that they offered sufficient evidence to rebut the presumption in § 52-182.
We are unpersuaded by this argument. “[Section 52-182] goes further than merely establishing a presumption, in that it expressly places upon the defendant the burden of introducing evidence to rebut the presumption created by the statute. Moreover, that presumption is not ousted simply by the introduction of any evidence to the contrary. . . . The presumption ceases to be operative [only] when the trier finds proven facts which fairly put in issue the question ... if no evidence relevant to the issue is produced, or, if countervailing evidence is produced but the trier does
Without the benefit of the presumption, the jury may have reasonably concluded that the plaintiff failed to offer any evidence to prove that Douglas was acting under the general authority of the defendants, thereby necessitating a verdict for the defendants. The jury may not have even considered the defendants’ evidence in arriving at its verdict. Furthermore, the jury did not know that the presumption required a finding in favor of the plaintiff on this issue if it disbelieved the defendants’ evidence. Although the claim of instructional error here was not properly raised and preserved, as was the case in Jancura, the harm to the plaintiff here was as egregious. We conclude that the error was so obvious and so affected the fairness of the trial that it constituted plain error.
The judgment is reversed and the case is remanded for a new trial.
In this opinion the other judges concurred.
Counsel stipulated at trial that the defendants Paul Markie, Paul Markie doing business as Markie Motors, and T.K. Sales, Inc., were to be considered as having the same interests and were to be viewed as one entity.
General Statutes § 52-182, which codifies the family car doctrine, provides in pertinent part: “Proof that the operator of a motor vehicle . . . was the husband, wife, father, mother, son or daughter of the owner shall raise a presumption that such motor vehicle . . . was being operated as a family car . . . within the scope of a general authority from the owner, and shall impose upon the defendant the burden of rebutting such presumption.”
The plaintiffs remaining claims are (1) whether the trial court abused its discretion in submitting special interrogatories to the jury when the special interrogatories confused and misled the jury, (2) whether the jury could
In response to a special interrogatory, the jury found that Douglas was not an agent of the defendants at the time of the accident.
See footnote 2.
Our Supreme Court has established that family corporations can be liable under the family car doctrine. Durso v. A. D. Cozzolino, Inc., 128 Conn. 24, 30, 20 A.2d 392 (1941). There is “no valid distinction between a situation where it is owned and maintained by a member of the family and one where, as here, it is owned and maintained by a family corporation for the use of the family . . . .” Id.
The relevant portion of the jury instruction is: “You’ll see as you look at this issue and I’ll instruct you, that there are really three essential propositions or elements involved in the family car doctrine, each of which must exist if the doctrine is to apply. So when you’re evaluating this question on the family car doctrine, ask yourself the following questions and ask whether or not these elements have been proven. And they are as follows: first, has the plaintiff, Mrs. Kulas, proven that the car was owned by the defendant, Paul Markie . . . and maintained by him for the general use and convenience of one or more members of his family other than himself and including his son, Douglas Markie? The second question — second, at the time of the accident was it being used by Douglas Markie for his pleasure or convenience? And, third, did Douglas Markie have general authority to use the car and was he at the time in question driving it under and within the scope of his general authority? Unless the plaintiff proves all three of these elements then she cannot recover against the defendants, Paul Markie or Markie Motors or T.K. Sales, under the family car doctrine." (Emphasis added.)
After some deliberation, the jury requested that it be reinstructed on the family car doctrine. The judge reiterated his earlier instruction. Again, the plaintiff did not object to the instruction.
The special interrogatories to the jury relating to the family car doctrine were presented and answered as follows:
“1. Do you find that the Defendants Markie Motors dba T.K. Sales, Incorporated or Paul Markie dba Markie Motors owned the vehicle that Douglas Markie was operating at the time of the accident?
“Yes.
“2. Do you find that the car was being used by Douglas Markie as a family car for his pleasure and convenience at the time of the accident?
“Yes.
“3. Do you find that Douglas Markie had a general authority to use the car at the time of the accident?
“No.”
Practice Book § 315 provides in pertinent part: “The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. . . .”
Practice Book § 4185 provides in pertinent part: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interest of justice notice plain error not brought to the attention of the trial court. . . .”
In Jancura, the plaintiff, injured in an automobile accident, obtained a jury verdict against the operator of the automobile, but did not prevail against the operator’s father, the owner of the vehicle. The plaintiff had requested the trial court to charge the jury on the family car statutory presumption provided for in § 52-182. Jancura v. Szwed, supra, 176 Conn. 287. The trial court denied the request and instructed the jury that “the plaintiff had the burden of proof as to all allegations of his complaint . . . .” Id., 290-91.