151 A. 318 | Conn. | 1930
Shortly after twelve o'clock the night of December 28th, 1928, an open Packard car driven by the defendant George C. Fahy, Jr., was in collision with a closed Graham-Paige car driven by defendant Raymond E. Verwholt, on Prospect Street in New Haven, and the plaintiff's decedent, Lincoln A. Maher, who was riding in the Fahy car, was thrown from the car and so badly hurt that he died soon after. This action was brought by the administratrix of his estate against the drivers of both cars as well as the owners of the cars, the defendants George C. Fahy, Sr., and Emma Verwholt. A jury gave the plaintiff a verdict against all the defendants for $10,000. Upon motion to set aside this verdict the court held that the jury could not reasonably have found from the evidence that Fahy, Jr., was guilty of conduct which constituted heedless and reckless disregard of the rights of others, and the verdict against the Fahys — father and son — was set aside. The court also held that the jury could not reasonably have found that the defendant Raymond E. Verwholt was the agent of his mother Emma Verwholt and therefore set aside the verdict as to her. This action of the trial court is the basis of the plaintiff's appeal, and the defendants Fahy have filed a bill of exceptions, to certain portions of the charge, to the refusal of the court to submit an interrogatory and to certain rulings on evidence. We first consider the action *78 of the court setting aside the verdict as to the defendants Fahy.
Fahy, senior, owned the Packard car and his son Fahy, junior, was in possession of and driving it at the time of the injury to the plaintiff's decedent. The latter, Lincoln A. Maher, was riding in the Fahy car as a guest within the meaning of our statute: "No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been intentional on the part of such owner or operator or caused by his heedlessness or his reckless disregard of the rights of others." General Statutes, § 1628.
The evidence was voluminous, and much of it contradictory, and all of it could not have been true. The situation was further complicated by the fact that the claims against all defendants were prosecuted in a single action so that some of the evidence admissible against one was not admissible against another. We have read and considered the entire evidence with great care and with particular reference to the conclusion of the trial court that the conduct of Fahy, junior, was not such as to create liability to the plaintiff under the statute referred to. Intentional misconduct cannot be seriously claimed and the single question is whether his conduct was something more than the lack of that due care of a reasonably prudent person, which is negligence. We have construed this statute to mean conduct which was in heedless and reckless disregard of the rights of others. Bordonaro v. Senk,
The jury's verdict also ran against Raymond Verwholt and his mother, Emma Verwholt. The court set the verdict aside as to the latter, but allowed it to stand as against Raymond Verwholt, who has not appealed. The question thus presented is whether the *80
Verwholt car was a "family car" maintained by Emma Verwholt for the use, pleasure or convenience of the family including the son Raymond Verwholt. We have stated the rule in this State as follows: "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." O'Keefe v. Fitzgerald,
There is no error.
In this opinion the other judges concurred.