Black v. Hunt

• Decision Date: 30 November 1921
• Court: Connecticut Supreme Court
• Parties: BLACK v. HUNT.

115 A. 429

96 Conn. 663

BLACK v. HUNT.

Supreme Court of Errors of Connecticut.

November 30, 1921

Appeal from Superior Court, New London County; John W. Banks, Judge.

Action by Henry H. Black, administrator, against Edwin S. Hunt, to recover damages for the death of plaintiff's intestate alleged to have been caused by defendant's negligence. Case tried to a jury, and verdict and judgment for defendant and plaintiff appeals. Error and new trial ordered.

Frank L. McGuire, of New London, for appellant.

Prentice W. Chase, of New Haven, for appellee.

CURTIS, J.

On February 3, 1919, the plaintiff's intestate, a boy about 10 years of age, came into collision with an automobile of the defendant on a state road in old Saybrook, and was killed.

The plaintiff alleged in the complaint that the defendant was riding in his car when the collision occurred, and that the car was being driven by his servant, one Hall, a minor of 15 years of age or less, in pursuance of the defendant's business and under his direction and that Hall was an incompetent and inexperienced operator of a car, and caused the collision by his unlawful operation of the car and by his negligent driving of the car in the several ways set forth in the complaint.

Under the complaint the case presented is one of negligence by a servant of the owner in relation to a stranger, and it is not a material fact in such an action that the servant is alleged to be incompetent and inexperienced.

Such an allegation in this class of cases, although accompanied by an allegation that the defendant had negligently provided an incompetent and inexperienced operator for his car, and thereby caused the injury, would not be an allegation of actionable negligence. Carlson v. Conn. Co., 94 Conn. 131, 108 A. 531, 8 A.L.R. 569.

Furthermore, an allegation or claim of incompetence and inexperience on the part of a servant, in an action of this character, does not permit the introduction of evidence of incompetence and inexperience as tending to prove the specific acts of negligence alleged. The connection is too remote. Carlson v. Conn. Co., 95 Conn. 731, 112 A. 646.

The assignments of error 1 to 5, inclusive, are all based on the claimed legal proposition that the allegation of incompetence or inexperience of the driver was a material fact in the cause of action alleged. We have already shown that under our law there is no foundation for this legal proposition. These claims of error are not tenable.

The sixth, seventh, and eighth assignments of error are based on the following claimed legal propositions:

(1) That an automobile operated on the highway by an unlicensed driver becomes an unlawful trespasser on the highway and a nuisance.

(2) That the owner of such an automobile who permits it to be so operated is liable for all injury caused by such nuisance, irrespective of negligence in the operation or of contributory negligence on the part of the injured.

These legal claims, the plaintiff urges, are supported by the law as laid, down in Massachusetts in Koonovsky v. Quellette, 226 Mass. 474, 116 N.E. 243, Ann.Cas. 1918B, 1146, to the effect that the owner of a motor car operated on the highway without its being registered according to law is liable for injury caused by a collision with such a car without proof that the operator was negligent: his liability being that of a wrongdoer maintaining a nuisance on the highway.

The Massachusetts courts have held, however, in Bourne v. Whitman, 209 Mass. 171, 95 N.E. 404, 35 L.R.A. (N. S.) 701, and other cases that:

" The operation of a car without a license, while it is a punishable act, does not render the car and the operator a trespasser and outlaw on the highway, but that the illegal element in the act is only the failure to have a license while operating it, so that if the operation and movement of the car contributed to an accident with which the want of a license had no connection, except as a mere condition, they would not preclude the operator as a plaintiff from recovery"

-and that such operation of a car by an unlicensed driver would not make the car a nuisance on the highway with the attendant legal consequences to persons or property injured by it. The ruling in this latter case is in accord with the well-established law of this state. Broschart v. Tuttle, 59 Conn. 1, 21 A. 925, 11 L.R.A. 33; Monroe v. Hartford R. R. Co., 76 Conn. 201, 56 A. 498.

These cases hold that:

" In doing an unlawful act a person does not necessarily put himself outside the protection of the law. He is not barred of redress for an injury suffered by himself nor liable for an injury suffered by another merely because he is a lawbreaker"

-but that in actions for negligence the fact that the plaintiff or defendant was a law-breaker at the time of the injury is ordinarily immaterial, unless the act of violating the law is in itself a breach of duty to the party injured in respect to the injury suffered.

There is in this case no claim, and there could be no claim, that the failure of the driver to possess a license directly contributed to cause the collision. It was merely a condition attending the collision, not a cause of it.

This principle of law may, of course, be modified by statute law as was done in section 44, chapter 233, of the Laws of 1919, which provides, among other provisions, that no recovery shall be had in our courts by the owner of a...