2 Conn. Cir. Ct. 650 | Conn. App. Ct. | 1964
On September 8, 1959, at about noon, the plaintiff’s 1959 Buick was being operated in a northerly direction on Groton Street in Old Lyme by the plaintiff’s daughter, Norma Tanguay. The plaintiff did not know how to drive, and, since the death of her husband, the Buick had been driven
As Mrs. Tanguay was thus proceeding northerly on Gfroton Street, she entered an intersection formed by Gfroton Street and A Street, the latter intersecting Gfroton Street at right angles. At this point, the intersection was about eighteen feet wide. When the rear portion of the Buick was about twelve feet into the intersection, the right rear fender and bumper of the Buick were struck by the front of a 1957 Chevrolet being driven westerly on A Street by the defendant Joseph Senofonte, as agent-servant of the defendant Lucy Senofonte. As a result of the impact, the Buick was spun around, so that it came to rest facing in a southerly direction, with its front end northerly of the northerly line of A Street.
In this action, the plaintiff seeks to recover for the property damage to the Buick, alleging that the damage resulted from the negligence of the defendants. The defendants deny their negligence and assert that the plaintiff cannot recover, in any event, because Mrs. Tanguay was negligent and her negligence is to be imputed to the plaintiff as the owner of a family car.
The first issue to be considered, then, is that of the alleged negligence of the operators. Both operators were familiar with the intersection, and both
This finding brings the court to the second of the defendants’ defenses, namely that the contributory negligence of Mrs. Tanguay bars a recovery by the plaintiff. The validity of this claim depends upon the validity of a claim of fact and a claim of law. The claim of fact is that the Buick being operated by Mrs. Tanguay was a family car, and the claim of law is that the negligence of Mrs. Tanguay, as the operator of a family car, is imputable to the plaintiff.
Taking up first the claim that the Buick was being operated as a family car, the court must at the outset determine whether the family car statute (General Statutes §52-182) applies here.
That the family car statute does not apply to the present case means, then, that the statutory presumption is not available to assist the defendants. They claim, however, that, even without any assistance from the statute, they have established that the plaintiff’s Buick was a “family car,” a phrase defined in the first family car case in this state, Wolf v. Sulik, 93 Conn. 431, 436, as “a motor-ear . . . maintained . . . for the general use and convenience of . . . [the owner’s] family.” The plaintiff, on the other hand, claims that the word “family” in this definition means “household,” and that the Buick was not a family car because Mrs. Tanguay and the plaintiff lived in separate households. It is true that, in the family car doctrine, the phrase “the owner’s family” has been held to mean a “member of the . . . [owner’s] immediate household.” Prosser, Torts (3d Ed.) p. 497. For example, in Smart v. Bissonette, 106 Conn. 447, the court applied the family car doctrine where the operator was a nonrelative housekeeper in the owner’s household. On the other hand, in Dibble v. Wolff, 135 Conn. 428, the court had presented to it the converse of Smart v. Bissonette, i.e. a case where the operator was a relative not living in the owner’s household, and the court “assumed,” but did not hold, that the operator was not a member of the “fam
The definition in Wolf v. Sulik, supra, also requires proof that the motor vehicle is maintained “for the general use and convenience of . . . [the owner’s] family.” On this issue, one of the criteria the court may properly consider is “the frequency . . . of operation of the automobile by a member ... of the owner’s family.” McCaughey v. Smiddy, 109 Conn. 417, 420. The evidence shows that during her vacation at Old Lyme and during the rest of the year, Mrs. Tanguay was the principal operator of the Buick, although, on occasion, she used it for transportation for her mother. Further, Mrs. Tanguay even kept the Buick at her home in New Britain for extended periods of time, although her mother was living in Plainville. In the light of this evidence, the court could hardly come to any conclusion other than that the Buick was maintained, primarily although not solely, for the use and convenience of Mrs. Tanguay.
The plaintiff claims that, notwithstanding the foregoing evidence that the Buick was a family car, the evidence fails to establish that Mrs. Tanguay had “general authority” to operate it. This claim is based on the fact that Mrs. Tanguay customarily informed her mother of the contemplated use of the
Since Mrs. Tanguay was negligent and since she was operating the Buick as a family car within the scope of her general authority, it becomes necessary for the court to consider the defendants’ claim that Mrs. Tanguay’s negligence is to be imputed to the plaintiff. This claim is based upon the much-discussed and much-criticized fiction of “imputed contributory negligence.”
On the other hand, there are still two classes of cases in which contributory negligence is ordinarily imputed. One class is the master-servant cases,
What, then, is the argument for extending those perimeters to embrace cases like the instant case, where the owner is not an occupant of the vehicle and, accordingly, is not in a position to control the operator? The basic argument is that Mrs. Tanguay would be deemed the plaintiff’s servant
It is only in the fiction of the family car doctrine
The result reached by the court accords with the result reached in analogous eases, under “owner-consent statutes,” in McMartin v. Saemisch, 254 Iowa 45; Jacobsen v. Dailey, 228 Minn. 201; and Mills v. Gabriel, 259 App. Div. 60, aff’d, 284 N.Y. 755. It does not accord with the “two-ways test”
Judgment may enter for the plaintiff to recover $349.90, the stipulated damages, from the defendants.
General Statutes § 14-245. That Mrs. Tanguay did not see Senofonte does not excuse her from her statutory duty to grant the right of way. Crowley v. Dix, 136 Conn. 97, 103.
The other presumption of agency statute, § 52-183, clearly applies only to cases where damages are sought from the owner and, therefore, does not apply to the present case, where damages are sought by the owner.
A Superior Court decision holds that the operator must be a member of the owner’s household to be part of the “family.” Pietrykowski v. Rodek, 16 Conn. Sup. 192.
See also Costanzo v. Sturgill, 145 Conn. 92, 95.
The family car doctrine applies even though the plaintiff was not the head of the family living at the cottage. Silverman v. Silverman, 145 Conn. 663, 667.
“There was much denunciation of these fictions and their consequences, as a result of which they steadily lost ground.” Prosser, Torts (3d Ed.) p. 501; see also 2 Harper & James, Torts, p. 1264; Lessler, “Imputed Negligence,” 25 Conn. B.J. 30.
Before 1890-1900, the general common-law rule was to the contrary. Gregory & Kalven, Cases and Materials on Torts, p. 216.
Wright, Conn. Law of Torts § 70, p. 103, & Sup., p. 34.
Lessler, supra note 6, at 38.
Traditional and modern views of the reasons for the policy are summarized in Prosser, op. oit. supra note 6, at 471. An interesting series of abstracts from essays about the policy may be found in Gregory & Kalven, op. cit. supra note 7, at 703.
In this state, the joint enterprise rule has been recognized but not well-received. See Weller v. Fish Transport Co., 123 Conn. 49, 54.
It is apparent from the statement of facts in Nettles and the authorities cited in the ease that the court regarded the case only as an “owner-occupant” case, and not as a case involving the issue raised by the instant case.
In family ear cases, the operator is often referred to as an “agent.” It is clear, however, that the reference is to a servant-agent, since ordinarily there is no liability for the negligence of a nonservant agent. Prosser, op. cit. supra note 6, at 479.
See Lessler, supra note 6, at 47.
Prosser, op. cit. supra note 6, at 497.
For a criticism of the “two-ways test” as applied to family-car cases, see 2 Harper So James, op. cit. supra note 6, at 1274.
General Statutes § 52-182.