Archambault v. Holmes

Decision Date07 February 1939
Citation125 Conn. 167,4 A.2d 420
CourtConnecticut Supreme Court
PartiesARCHAMBAULT v. HOLMES et al.

Appeal from Court of Common Pleas, New Haven County; Raymond J Devlin, Judge.

Action tried to the court by Clarence E. Archambault against Albert G. Holmes and others to recover damages for injuries to an automobile, alleged to have been caused by the negligence of the defendant. From a judgment for the plaintiff, the defendants Holmes appeal.

Error and new trial ordered.

John Clark FitzGerald, Richard C. Hannan, and David E. FitzGerald, Jr., all of New Haven, for appellants.

T Holmes Bracken, of New Haven, for appellee.

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.

MALTBIE, Chief Justice.

The plaintiff brought this action to recover damages done to a car he owned as the result of a collision between it and another car. The defendants are Martin, who was driving the plaintiff's car, Howard J. Holmes, who was driving the other car, and his father, Albert G. Holmes, who owned it his liability being based upon the fact that the son was operating it as a family car. The finding, the corrections in which claimed by the appellant we do not need to consider, states the following facts: The plaintiff operates an automobile sales agency and a garage. Martin became interested in a car he had for sale and the plaintiff instructed an employee, Foster, to put markers on it and take Martin for a ride. Martin asked permission to drive the car himself. The plaintiff directed Foster to warm it up and then turn it over to Martin. Foster did this, explaining its automatic gearshift to Martin before turning it over to him. Thereafter Foster sat in the driver's seat to the right of Martin. The collision occurred while Martin was operating the car. The only finding of the court as to the control of the car after it was turned over to Martin is that while he was operating it Foster did not tell him to drive fast or slow, what streets to go on, when to stop or slow down, and in no way attempted to supervise or exercise any control over his driving of the car. The trial court gave judgment against all three defendants, and the defendants Holmes have appealed on the ground that Martin at the time of the collision was operating the car as the plaintiff's agent and that consequently his negligence would be imputed to the plaintiff and prevent a recovery by him.

In three cases we have held that where a prospective purchaser was intrusted with an automobile by the seller in order to try it and see if he cares to purchase it and he was not accompanied by the owner of the car or his representative the purchaser was not the servant or agent of the owner so that the latter was responsible for the former's negligent conduct. Marshall v. Fenton, 107 Conn. 728, 142 A. 403; Murphy v. Mace, 112 Conn. 684, 152 A. 582; Papineau v. Hefflon, 118 Conn. 688, 171 A. 509. In the first of these cases we said (page 731, 142 A. page 404): ‘ In cases in other states in which the owner of an automobile has been held liable for the negligence of a prospective purchaser in driving the car, the driver was, at the time, accompanied by, and acting under the supervision and control of, an agent or employee of the owner.’ In support of that statement we cited a number of decisions to which may be added the following: Hoffman v. Roehl, 61 Mont. 290, 203 P. 349, 20 A.L.R. 189; Smith v. Howard Crumley & Co., Inc., La.App., 171 So. 188; Lott v. Grant, 198 Wis. 291, 223 N.W. 846. To hold the seller of the car liable in such a situation would accord with our decision in Reetz v. Mansfield, 119 Conn. 563, 178 A. 53, where we sustained a judgment against the owner of a car based on negligence in its operation, although at the time a young lady was behind the wheel of the car and he was sitting to her right but seized the wheel just before the collision; and we said (page 567, 178 A. page 55): ‘ While there may be a presumption that the person behind the steering wheel is controlling the car, it is not a conclusive presumption. Where one learning to drive, for example, is behind the wheel and the instructor is at his side, the latter may in fact be in the actual control of the car.’ Where one permits another to operate a car but remains in control, the drivers is no more than the alter ego of the other and his...

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