Baker v. Paradiso

• Citation: 117 Conn. 539,169 A. 272
• Court: Connecticut Supreme Court
• Decision Date: 08 November 1933
• Parties: BAKER v. PARADISO.

169 A. 272

117 Conn. 539

BAKER v. PARADISO.

Supreme Court of Errors of Connecticut.

November 8, 1933

Appeal from Superior Court, New Haves County; Newell Jennings Judge.

Action by May Baker against Maria Paradiso to recover damages for personal injuries alleged to have been caused by negligence of the driver of defendant's automobile, tried to the jury. Verdict and judgment for plaintiff, and defendant appeals.

No error.

Richardson Bronson and J. Warren Upson, both of Waterbury for appellant.

Clayton L. Klein, of Waterbury, and Walter W. Walsh, of New Haven, for appellee.

Argued before MALTBIE, C.J., and HINMAN, HAINES, BANKS, and AVERY, JJ.

HINMAN, Judge.

The complaint alleged and an amended answer admitted that an automobile owned by the defendant was negligently driven by her son, Tony Prigioniero, and collided with a car in which the plaintiff was riding. On the trial the plaintiff offered uncontradicted evidence of injuries sustained thereby and their extent and consequences. It was alleged, further, that the defendant kept her automobile for the use and convenience of her family, and that, at the time, it was being operated by her son with her knowledge and consent. Denial of these allegations raised the issues of fact which were contested on the trial.

The accident occurred on December 21, 1930, and this action was returnable the first Tuesday of March, 1931. General Statutes, Cum. Supp. 1931, § 600a, which is printed as a footnote, ^[1] took effect April 29, 1931. It appears from the finding that, relying upon the presumption provided by this statute, the plaintiff offered in chief no evidence of the driver's authority other than the admitted fact of his relationship to the defendant owner. The defendant moved a nonsuit which was denied, the trial court ruling the statute applicable. Thereupon the defendant offered her own testimony that she purchased and maintained the car for her own use only, that she retained the keys to the garage and the car and had no knowledge that her son Tony had keys thereto in his possession, and that she never gave him permission to operate it and was not aware that he did so.

The plaintiff, in rebuttal, offered evidence to prove and claimed to have proved that the defendant's family consisted of herself, her son Tony, aged nineteen, another son, Rocco, under sixteen, and a minor daughter. Until August 11, 1930, after which date Rocco was absent from home, John Mucci drove the car, and all the orders and instructions concerning its use were given to him by Rocco. After Rocco left, Mucci drove the car on several occasions, and all directions concerning its use were given by Tony. The defendant did not at any time give Mucci any instructions or directions concerning the use of the car. Sometimes the defendant rode in the car; Tony was always present except on one occasion when the defendant gave Mucci permission to use the car for himself. The garage in which the car was kept was located a short distance from the defendant's house and was locked as was the car. On all occasions Tony had keys to the garage and the car and unlocked them. The defendant's car had been used on four successive Sundays for a trip to New Haven by Tony, Mucci, and Alfred Sacco. These trips had all been taken at the request of Tony and under his direction, Mucci driving. On Saturday evening, December 20, 1930, Tony asked Mucci to get a battery for the car, and the next day they, accompanied by Sacco, who was invited by Tony, and two girls went again to New Haven. Tony had previously driven the car and was driving on the way back from New Haven when the accident occurred. The plaintiff claimed to have proved by inference from the facts in evidence that the defendant's car was maintained by her for the pleasure and use of her family, and that the son Tony used and operated it with her knowledge and consent and under a general authority to do so.

In the foregoing statement we have given the appellant the benefit of such corrections of the finding as she is entitled to and which might be material to the only purpose served by the finding which, in a jury case, " is not a determination of facts as such, but only a narrative statement of what evidence was offered to prove, and what the party claims was proved either directly or by inferences reasonably drawn. Its sole purpose is to enable the presentation of claimed errors in the charge and rulings of the court." Peterson v. Meehan, 116 Conn. 150, 153, 163 A. 757, 758. This being the nature and only office of the finding, the appellant cannot raise, by means of assignments for its correction, factual issues which would properly be presented only under an assignment of error in refusal to set aside the verdict. As the latter assignment is not made on this record, the ruling on the motion to set aside the verdict and the question, which would only be appropriate under it, whether the jury might reasonably find, by inference from facts in evidence, that the defendant's was a family car and her son authorized to operate it, is not presented by the appeal. Rules for Appellate Procedure, § § 4, 15.

Several of the assignments of error in refusal of requests to charge and in the charge pertain to the family car doctrine. The appellant claims, first, that the allegations of the complaint were not adapted and were insufficient to permit reliance upon this doctrine, and that the charge should have been that the defendant could be held liable only if it was established that the operator of the car was her agent and acting within the scope of his authority. The complaint alleged that the defendant owner kept the automobile for the use and convenience of her family, and that it was being operated by her son Tony with her knowledge and consent. The finding clearly indicates that the evidence was presented and the case tried with a view to establishing liability under the family car doctrine, without objection by the defendant, to evidence or otherwise, pointing to any claimed insufficiency of the allegations of the complaint to raise that issue. We regard the complaint as adequate to fairly apprise the defendant of intended reliance upon that doctrine, and even if it were deficient in this respect, under the circumstances, mere inferential objection through a request to charge on the agency theory was insufficient and came too late. McCaughey v. Smiddy, 109 Conn. 417, 418, 146 A. 822.

A charge was requested that the only evidence of the purpose for which the car was maintained and used was that of the defendant that it was not a family car, and that her son Tony had no authority to operate it. While this was the only direct testimony on that point, the plaintiff introduced evidence of circumstances and conduct of the parties tending to an inference of maintenance and use as a family car. Evidence of this nature is, naturally, often the sole resort of a plaintiff in such a case, and, although circumstantial, is not to be disregarded and may be adequate to overcome direct testimony to the contrary. McCaughey v. Smiddy, supra, page 420 of 109 Conn., 146 A. 822.

The charge as a whole and the wording of the repeated references to the necessity of proof of a general authority to use and operate the car as an element requisite to recovery convince us that the jury could not have construed the instructions otherwise than that the plaintiff could not prevail unless it be found that the son Tony had such general authority.

In the course of the charge the trial court read General Statutes Cum. Supp. 1931, § 600a, already quoted, and instructed the jury as to its effect in raising, from proof of a relationship within the statute, a presumption that an automobile was being operated as a family car and under general authority from the owner. It was explained further that this presumption is...