*1 Epstein, Stickney v. quate. 170, 175, Atl. 1. The distinguishable instant case is from Branciere, Greenberg v. 124 Atl. 216, because in that case negligence no definition of given.
While would have been better the court had stated that the definition negligence same applied whether to the conduct of the the plaintiff, charged expressly was under a duty to exercise for reasonable care her own safety view of circumstances of situa- tion, charge a whole must held to have been adequate proper guidance jury.
There is no error.
In opinion judges the other concurred. Koops Gregg
Carl et al. Alice J., Maltbie, Bkown, Jennings, Dickenson, C. Ells Js.
Argued April reargued March 4 decided June 23 Per Curiam filed June Joy, with whom was Schofield, D. John W.
Harrison defendant). (named appellant for the E. whom was David Foote, with B. Ellsworth Fitz- Jr., (plaintiff). appellee gerald, injured by the The C. J. Maltbie, operation in the of the negligence de- the named was owned automobile which of an trial court to set from the refusal fendant, judgment from the favor verdict in his aside a claiming the latter appealed, has that verdict she alleged complaint charge. in the errors appeal family the basis that she was liable presented been tried and has but the case was doctrine; agency presumption ground on the to us broader the owner of out of the fact that growing parties theory adopted by shall follow car. We *3 ground. on the latter determine the issues question The basic involved is the Proc., App. § presumption by created 1661c of the § effect of printed which is Supplement 1935, Cumulative language of this is the footnote.1 statute 1658c of the Cumula- similar to that of quite § Supplement provides proof which 1935, tive of related operator the of a motor vehicle is to the degrees pre- specified certain raise a owner shall being family as a sumption operated the car is upon and shall the burden impose car the defendant rebutting have the presumption; of the and we treated Both than having go merely as effect. further two like a establishing presumption they definitely place rebutting upon the burden of the But defendant. rebutting that burden is to the presumption; restricted does not shift the of prov- defendant the burden agency presumption operation. Sec. 1661c. of in motor vehicle against any brought action In civil the a motor vehicle to owner of damages negligent operation recover or mo the reckless of such vehicle, operator, the tor if he be other the owner such than of vehicle, presumed agent motor shall be the and servant of the operating owner of such motor vehicle and the same in the course employment, of his re the shall have the burden of butting presumption. such
ing that
the car was not
family
car or that
the
operator agent
not the
of the owner, as
case
may
presumption
be. The
ceases to be
when
operative
proven
the trier finds
facts
put
in issue
fairly
the question, and the burden of proving that
family
operated
was a
agent
an
owner,
may be,
case
then
upon
rests
the plain
if
tiff;
no evidence relevant
to the
is produced,
issue
ifor,
countervailing
produced
evidence is
trier
does
it,
not believe
the presumption
and the
applies,
plaintiff is entitled to
the issue
found
his favor.
Amodeo,
O’Dea
486;
Co.,
Leitzes v. F.
L. Caulkins Auto
Conn. 459, 462,
145;
Helfant,
196 Atl.
Lockwood v.
189 as to make presumed the facts to applies statute might legislature or unreasonable. arbitrary majority great reasonably have considered is his by of another operator a owned of cases employment, scope of his agent acting within the knowledge peculiarly the facts are within usually his within peculiarly it is of the defendant and Kolensky v. as to them. power produce evidence 777. It is 129 Atl. DeFrancesco, 660, 662, of the statute reasonableness commentary without many courts, already, noted that, as we have pre applied a similar any statute, of benefit previously to the cases sumption; see, addition 234 W. 466, N. 464, 204 Wis. Kandler, cited, v. Gehloff E. 253, 108 N. 249, 214 Sterling, N. Y. 717; Ferris v. 23; 552, L. 120 406; Padolsky, 98 N. J. Crowell v. Pac. 133 Abercrombie, 74 v. Wash. Birch Law, of Automobile 1020; Blashfield, Cyclopedia 9 within the decisions 6065. The statute falls § 35, 219 Mobile, v. U. S. Turnipseed, J. & K. C. R. R. Ford, 31 Atlantic Coast Line v. 43, Sup. 136, Ct. than, claimed rather Sup. U. S. Ct. & Atlantic by that of defendant, within Western Ct. 445. Sup. Henderson, R. Co. S. U. grounds. The statute not on constitutional invalid spe- urge any not, brief, The defendant in her does the deci- objections cific followed charge, to the there referred, and court sions to which we have from appeal is no occasion to consider further judgment. in our consideration handicapped We are because, aside ruling the verdict refusing to set agreement testimony offered counsel, all it was transcript before deleted from the out of except made printed for the record a statement *5 cer- contradict son, court the offered to by defendant’s no to be tain There seems given in court. testimony following plaintiff, pedes- facts: The a dispute as to the Sunday morning 1 o’clock on a was at about trian, negligent injured operation of the because Tweedy. The was question in by in New by defendant, owned the named whose home is in registered it her name. Her son Jersey, where was Yale, kept at and the car was Donald was a student in the Tweedy him the. lived same university. at Another man who Gregg. young as Donald dormitory in passenger in dormitory lived the same was car. under the circumstances -only as to evidence car' was possession Tweedy
which came to Tweedy the defendants. apparently offered Gregg night that -the of the accident testified on in ac- paying $1 former borrowed the use car, its Tweedy cordance with a custom among students. that to purpose go party testified his was to on a had been that Gregg which he invited and testified made the Tweedy urgent enough situation he seem so Both Tweedy loaned the car.' testified that had-never Gregg borrowed it. to before testified he had some extent loaned the car at other times. Both he questioned purposes his mother were as to the Haven, for which he as to keeping car New him in any given regard loaning instructions she had it knowledge others, and as to her of his it to loaning regard and in testimony of these witnesses these matters there are certain inconsistencies and con- agreed tradictions; general both the use of Gregg’s judgment the car was left to and discretion. knowledge Gregg Mrs. testified she had no later of car was loaned until informed accident, that could not recall whether son Sunday on telephoned her the accident about not occurred using Tweedy and that *6 191 her bene- anything for doing or on for her any errand that she her implicit-in testimony fit; and it is night when car was the on the New Haven not borrowed. to jury function of a the exclusive
Ordinarily it is the believe or disbelieve they will determine whether court a however mistaken witnesses, and, of testimony their conclu think it cannot override -may they are, rule 114; this Proc., sion; App. §§113, Conn. regards us, before as like the one applies under statutes to rebut facts sufficient jury a conclusion Amodeo, O’Dea v. proved. been presumption the have But that Helfant, supra, 587. supra, 67; Lockwood v. con it will unreasonable conclusion be so may such a situation where law, stitute an error Roma v. interfere. the court to duty exists it is of Co., Atl. 18, 96 River 20, Specialties Thames 90 Conn. Co., Conn. York, & H. R. 90 Baril v. New N. H. 169; Co., Baking 104 Dudas v. Ward 74, 76, 164; 96 Atl. Bromberg, 108 Levy 516, 133 518, 591; Conn. Atl. v. 142 may Atl. It 836. be disregarded all jury have properly case the could in the use testimony Gregg which tended limit to where loaning car, leaving situation one it not to be without borrowing could be found Gregg. But consent consent Mrs. implied not itself de use would part its negligence, for his question liability of her termine using fact that depend that would doing in the execution her busi he was something Hopkins, 241, 111 ness. Adomaitis v. 95 Conn. Herz, Atl. 702, 704, 124 Mastrilli v. 178; (2d) Burch, Fed. App. D. C. 835; Turoff It not Blashfield, cit., would 986; op. §§ Gregg’s liability that she enough Mrs. be establish in New Haven to while was left the use Of the of her son discretion and knew that he at times loaned it to others; or even that might pleased him might do so because it him give a better among standing his fellow students; not, law does *7 in determining agency, take account of indefinite con- possible and siderations motives nature. of such a Garage, v. Al’s Tire Inc., Whiteman & Service Conn. 379, 382, 161 Atl. In this case jury could not reach reasonably any conclusion than other that Mrs. Gregg night was not in New Haven on the the car was borrowed, that, with- that as a basis, did not know that Tweedy had it, that, borrowed and in using it, he doing anything was not behalf. her With these facts the case, the would presumption rebutted; and, as the record discloses no evidence sufficient affirmatively prove Tweedy, using that agent car, was her acting scope within the of. his authority, a not verdict properly be rendered co.uld against her. The trial court should have set the ver- dict aside.
There is error, judgment is and set aside a new is trial ordered.
In opinion this and Dickenson, Ells Jennings, Js., concurred. J. (dissenting). The majority’s decision
Brown, jury could not have found that use Tweedy was “in the execution of her [the named business,” it constituted defendant’s] “doing anything her behalf,” is determinative of its conclusion that she not is liable this record. It is my opinion that jury were warranted in finding contrary, thus rendering the defendant liable, and there is no error. appears Adomaitis and Whiteman
As from the cases, support relies upon opinion majority which in this connection used “business” conclusion, its promote “to than an act more mean no well may interests” important legitimate in such engaged one said that can it be Nor owner. It is in her behalf.” doing anything “not an act was in the decisions, in those out true, pointed as is use another permitting owner of an ordinary case other, of such solely purpose out some carry his car to result may appreciation feeling of the latter’s for the one of the car use render his insufficient to is consideration. under in the sense benefit of the owner however, record, presented The situation any than more something case, not ordinary Tweedy’s part feeling appreciation possible *8 involved. these facts:
The have found jury properly could it to see to determined mother, Mrs. Gregg was a fond during years his four son, that Donald, youngest the full all of accouter- at Yale had and used to other brothers and enjoyed by fraternity ments his drive an automobile to associates. These included Mont- back from Haven to his home and forth New to clair, Jersey, New to for week-end excursions use of transportation purposes New York and for for other it and, he deemed activity pleasure, student or when fellows, compatible standing among with his his social them, might loan theirs apparently to loan to as they for “customary” $1 fee him, upon payment to of the for gasoline In short, provided and oil. him to use carte blanche. Co., Inc., Jennings case of Ackerson v. its the basis affording facts analogous
of the one before liability, nearly is more us than any by There, other decided this court.
general manager of the defendant’s busi- automobile employees given invited its to attend a dinner
ness at expense, appreciation :as a token of his their his of urged desirability the dinner he of services. .At way On the closerrelations and himself. between.them plaintiff’s home, intestate as a was killed result negligent operation car, which of the defendant’s , transport being by guests. them, was one used held, might reasonably jury We con principally, cluded that the dinner was if not intended wholly, promote by .to foster the defendant’s interests ing good harmony, cooperation in ar will; and ranging acting manager implied, it the within the apparent, scope authority; or and his at.least given that therefore it was it immaterial-whether was the, authority with actual or' consent' approved by or would have been ratified the unfortunate termination. In .the instant case jury reasonably have, could Donald, the son, found-that loaning something doing the car to popularity among standing increase his and social his contributing students,- fellow this means to the undergraduate; of his success activities an that the defendant intended and was anxious that he enjoy accrue, advantage'might whatever to him such con duct and the use of the car which involved; to her mind this would be of him benefit to- so to *9 gratification pride her; that it afforded desire, of her' doing and ambition; and therefore it was some that thing promote “to [her] interests” within- the ratio decidendi of the Ackerson case. As in the stated jury case, Whiteman could have found it was “to promote legitimate important [to least] her at paraphrase, . interests of the defendant.” To “The au thority may for Donald to act this matter been express, may by implication or it have arisen from all the attendant circumstances. The must act have been. undertaking performed pursuance the son authorized the defendant before the latter could Donovan, have been held 88 Conn. liable.” Carrier v. It my jury, is taking conclusion that without “account of indefinite or giving considerations” undue weight “possible” to “motives” which were not only probable, could have found that under the second ground just quoted the use of the car by Tweedy was “in the execution of [the business” and defendant’s] “in something her behalf”; done in short, that awas carrying out of the very purpose for maintained the Under car. the circumstances, apply- ing the principles of law recited in the opinion, my judgment this court should not hold as a matter of law that Tweedy was not Mrs. Gregg’s agent. Furthermore, in my judgment charge court’s to the jury was I correct. therefore conclude that there is no error. filed a motion to re-
Per Curiam. argue this case, restricted to a claim rescript, of directing instead unqualifiedly trial, a new should limit the retrial solely to the issue whether the de fendant operating the car at the time of the accident acting agent as the Gregg. Mrs. This was the only issue as to which, the appeal us, any error was claimed. The granted motion was and on the reargument Gregg’s Mrs. agreed counsel might done, well be unless this court would judgment direct in the trial court be rendered her favor. As this case was tried to the jury, we could in no event do that. Fay v. Springfield & Hartford Street Ry. Co., 81 Conn. Atl. 734. We can, however, remanding jury case, restrict the issues to be retried. Whittlesey, Smith v.
196 Krenz, 1085; Murray v. Conn. Atl. Atl. Taylor, 859; Porter v. before Proc., 179. The situation 649; App. § upon call us exercise peculiarly to us seems read; rescript is amended power. Accordingly, the new and a aside error, judgment is set There is the de- whether solely upon the issue trial is ordered negligence of for the Gregg Mrs. is liable fendant the time at operating re- is issue, this verdict accident; if, upon be rendered is to judgment liable, finding turned the defendants recover of both of that the judgment him in the due damages found amount of a verdict if, issue, from; but appealed is to judgment then liable, is not so that she rendered finding the issues her. be rendered Betty Mignone Murphy. John J. Dickenson, Jennings, Brown, J., Maltbie, Ells Js. C. Argued May 6 decided June