Begley v. Kohl & Madden Printing Ink Co.

• Decision Date: 22 January 1969
• Citation: 254 A.2d 907,157 Conn. 445
• Parties: John H. BEGLEY, Jr., et al. v. KOHL AND MADDEN PRINTING INK COMPANY et al.
• Court: Connecticut Supreme Court

Page 907

254 A.2d 907

157 Conn. 445

John H. BEGLEY, Jr., et al. v. KOHL AND MADDEN PRINTING INK COMPANY et al.

Supreme Court of Connecticut.

Jan. 22, 1969.

Morgan P. Ames, Stamford, for appellants (plaintiffs).

Paul V. McNamara, Bridgeport, with whom, on the brief, was Donald J. St. John, Bridgeport, for appellees (defendants).

Before KING, C. J., and ALCORN, HOUSE, THIM and RYAN, JJ. RYAN, Associate Justice.

The named plaintiff, a twelve-year-old boy, hereinafter referred to as the plaintiff, brought this action by his mother and next friend against the named defendant, Kohl and Madden Printing Ink Company, hereinafter referred to as Kohl & Madden, and against his father, the defendant John H. Begley, individually and as the agent, servant or employee of Kohl & Madden. The plaintiff's mother, Mary M. Begley, sought in the same action to recover for medical and hospital expenses which she incurred on behalf of the boy. The complaint recites personal injuries to the plaintiff incurred on July 28, 1961, and seeks recovery predicated on allegations of negligence and reckless misconduct by the defendants. In their answer, the defendants denied these allegations and pleaded three special defenses. In the first of these, the defendants alleged that the plaintiff was the unemancipated son of the defendant John H. Begley and had no cause of action against his parent. In the second special defense, the defendants alleged that, for the same reason and on the ground of public policy, the plaintiff Mary Begley had no cause of action for the medical and hospital expenses alleged in the complaint. In the third special defense, the defendants alleged that the plaintiff was chargeable with contributory negligence. The trial court directed a verdict in favor of the defendant Begley on the cause of action of the minor plaintiff and the plaintiff Mary Begley on the ground of parental immunity. The jury returned a general verdict in favor of the defendant Kohl & Madden, and the plaintiffs have appealed.

The assignments of error addressed to the charge are to be tested by the claims of proof as they appear in the finding. Practice Book § 635; Intelisano v. Greenwell, 155 Conn. 436, 444, 232 A.2d 490; Morgillo v. Evergreen Cemetery Ass'n., 152 Conn. 169, 177, 205 A.2d 368; Shulman v. Shulman, 150 Conn. 651, 654, 193 A.2d 525. Upon the trial the plaintiffs claimed to have proved the following: On July 28, 1961, the plaintiff John H. Begley, Jr., was twelve years of age. His father, the defendant John H. Begley, hereinafter referred to as Begley, was employed by the defendant Kohl & Madden. The company provided Begley with a leased station wagon for use in performing his duties in calling on people on the eastern seaboard. He had possession of the car and kept it at his residence on Stanwich Road in the town of Greenwich. It was his responsibility to see that the car was kept in good operating condition, and Kohl & Madden paid for any work done on it. In the early morning of Friday, July 28, 1961, Begley was driving the station wagon. About 8:30 or 9 a.m., he took it to the Pontiac agency for repairs after telephoning the repair shop that work done there the previous day was unsatisfactory. The repair work was completed satisfactorily in about forty-five minutes. Begley used the car primarily for business. It was his intention to use it in his work the following Monday and possibly to use it for a trip to visit his children in Vermont on the day of the accident. After leaving the Pontiac shop, Begley went on an errand and stopped to pick up some drugs or a suit and then proceeded toward his home. He was alone in the car, and he turned from the Post Road into Stanwich Road. The station wagon was in good operating condition. The plaintiff was riding his bicycle and was on the right side of Stanwich Road. Begley and the plaintiff stopped by a tree on the right side of the road. The plaintiff did not get off his bicycle, which was right beside the station wagon. He asked his father for a ride up to the house and was told 'okay' and 'hang on.' The father had never before given his son a lift in this fashion. The plaintiff and his father pulled away traveling very slowly and went up the hill very slowly. Prior to this time, a fusion operation had been performed on the father's neck, as a result of which his ability to turn was limited. As Begley towed the plaintiff up the street, he did not know what part of the car his son was holding onto and could not see the boy's left hand at any point as they went up the street. The terrain in that area is very rough and, as Begley drove up the street, he knew that the right side of the street along the edge was rough and bumpy and that there were rough places in two driveways. The car and the boy on the bicycle were in a driveway where it extends out into the road. It was very rough and there were deep ruts in it. The plaintiff was being pulled in the rough driveway, which was the worst part of the road. There was no other traffic on the highway. When Begley turned the car to the left, he did not warn his son that he was going to do so. When he accelerated, he did not warn the plaintiff that he was going to do so. The plaintiff tumbled or was catapulted onto the gravel shoulder of the road and was found unconscious and bleeding about twenty or thirty feet farther up Stanwich Road than the bicycle.

The plaintiffs assign error in the charge to the jury wherein the trial court directed a verdict in favor of the defendant father on the ground of parental immunity. For a long period of time, it has been the law in this state that an unemancipated minor cannot maintain an action for negligence against his parent. Mesite v. Kirchenstein, 109 Conn. 77, 82, 145 A. 753. He can, however, maintain an action against his parent's employer for the negligence of his parent while the parent is acting in the course of his employment. Chase v. New Haven Waste Material Corporation, 111 Conn. 377, 382, 150 A. 107, 68 A.L.R. 1497. In Shaker v. Shaker, 129 Conn. 518, 521, 29 A.2d 765, we held that a parent cannot maintain an action for negligence against his unemancipated minor child. The reasoning of these decisions was well stated in Mesite v. Kirchenstein, supra, 109 Conn. 84, 145A. 'The state and society are vitally interested in the integrity and unity of the family and in the preservation of the family relation. The obligation of the father, or it may be the mother, to care for, a guide, control and educate their child, and the reciprocal obligation of the child to serve and obey the parent, are essentials of the family relationship. Authority in the parent to require obedience in the child is indispensable to the maintenance of unity in the family. Anything which undermines this authority, brings discord into the family, weakens its government and disturbs its peace, is an injury to society and to the state. Few things could bring about this unhappy condition more quickly or widen the breach between parent and child further than the bringing of an action at law for personal injuries by a minor child against the parent.' To permit such actions is against sound public policy. See Overlock v. Ruedemann, 147 Conn. 649, 651, 165 A.2d 335. The trial court correctly instructed the jury on the law applicable to the facts of the present case. ¹

The plaintiffs further urge that, even if it is assumed that the traditional rule of parental immunity for negligence is still viable, the trial court should have charged the jury as requested by the plaintiffs that, if the defendant father was chargeable with wilful and wanton misconduct which caused the injuries, the plaintiff son can maintain a tort action against his father. No Connecticut case has been cited by the plaintiffs as authority for this claim of law. The defendants claim that the complaint does not set forth a casue of action based on wanton misconduct. 'There is a wide difference between negligence and a reckless disregard of the rights or safety of others, and a complaint should employ language explicit enough to clearly inform the court and opposing counsel that reckless misconduct is relied on.' Brock v. Waldron, 127 Conn. 79, 81, 14 A.2d 713; Dumond v. Denehy, 145 Conn. 88, 91, 139 A.2d 58. 'Recklessness is a state of consciousness with reference to the consequences of one's acts. Commonwealth v. Pierce, 138 Mass. 165, 175. It 'requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any...