Bushnell v. Bushnell

• Decision Date: 23 December 1925
• Court: Connecticut Supreme Court
• Parties: BUSHNELL v. BUSHNELL.

131 A. 432

103 Conn. 583

BUSHNELL v. BUSHNELL.

Supreme Court of Errors of Connecticut.

December 23, 1925

Appeal from Superior Court, Hartford County; Edwin C. Dickenson Judge.

Action by Inez A. Bushnell against Mark W. Bushnell. Judgment for plaintiff for $2,000, and defendant appeals. Error, judgment set aside, and new trial ordered nisi.

Raymond E. Baldwin, of Bridgeport, for appellant.

Ralph O. Wells, of Hartford, for appellee.

MALTBIE, J.

The plaintiff and defendant are husband and wife. She has brought her action to recover for personal injuries, which she alleges she suffered by reason of his negligence, and has secured a verdict. They were riding together in an automobile which he was driving, returning to their home in Thompsonville after taking their son to Brown College, where he was a student. The defendant momentarily fell asleep, with the result that the automobile ran off the highway and struck a tree at the side of the road, with consequent injury to the plaintiff. The plaintiff, who was riding on the front seat beside the defendant, was also asleep at the time of the accident, and had been for some time before. The defendant in his appeal makes four claims of substantive law, which he says invalidate the verdict: First, that a wife cannot maintain an action against her husband to recover damages growing out of his negligence; secondly, that the parties were engaged in a joint enterprise at the time of the injury thirdly, that the defendant cannot be held to have been negligent because the accident was due to the fact that he momentarily dropped off to sleep while operating the automobile; and, fourthly, that the plaintiff was guilty of contributory negligence.

In Brown v. Brown, 88 Conn. 42, 89 A. 889, 52 L.R.A. (N. S.) 185, Ann.Cas. 1915D, 70, in sustaining the right of a wife to sue her husband for an assault committed upon her, we pointed out the nature of the change created in the status of husband and wife by the statute of 1877, in these words:

" In marriages which have occurred since the act took effect the parties retain their legal identity, and their civil rights are to be determined in accordance with the status thus established. These rights, except so far as they are modified by the statute itself or by other statutes, or are necessarily affected by the reciprocal rights and obligations which are inherent in the relation of husband and wife, are the same as they were before marriage. * * * It is an equally necessary consequence of her retention of her legal identity after coverture, that she has a right of action against her husband for a tort committed by him against her and resulting in her injury. Such a tort gives rise to a claim for damages. Such claim is property not in her possession, but which she may by action reduce into her possession, just as she might before coverture have had an action against him for such a tort committed before that event. The husband's delict, whether a breach of contract or personal injury, gives her a cause of action. Both necessarily follow from the fact that a married woman now retains her legal identity and all her property, both that which she possessed at the time of marriage and that acquired afterward."

While we were there dealing with an assault, that is, a willful tort, the language used was designed to apply broadly and to give the wife the same right to sue her husband for any tort committed by him that any other individual would have, except as that right is modified by statutory provision or is necessarily affected by the marriage relationship. The general language of the opinion must be read in the light of the exception, for doubtless there are certain mutual liabilities, and mutual rights as well, which inhere in the marriage contract, so that conduct which might be a tortious act as to third persons would, under certain circumstances, create no liability upon that ground as between husband and wife. But here the wife is seeking to recover damages for the negligence of her husband, who, for aught that appears, had the normal use of his faculties of mind and body, and who was engaged in the ordinary occupation of driving an automobile upon the highway. Such a situation falls, not within the exception, but within the broad principle of liability announced in the Brown Case. That principle has not been questioned since, and the dangers from it which we then refused to regard as substantial have not in fact made themselves manifest. We see no reason now to narrow the scope of the rule we then stated, and in compliance with it we hold that, aside from such cases as may be found to fall within the exception, a wife may maintain an action against her husband for personal injuries due to his negligence.

The so-called doctrine of joint enterprise, recognized by us to a certain extent in Coleman v. Bent, 100 Conn. 527, 124 A. 224, is very well stated in a note in 8 L.R.A. (N. S.) 628:

" It is generally agreed that, if two persons are engaged jointly in a common enterprise requiring for its purpose that they use and occupy a conveyance of some sort--a wagon, boat, or other vehicle--in the management and control of which both have equal authority and rights, each assumes a responsibility for his colleague's conduct; and, if either is injured by the negligence of a third party and the concurring negligence of his companion, the mere fact that he was not at the time driving the common conveyance will not enable him to recover of the wrongdoer."

More specifically it is stated in 1 Shearman & Redfield, Negligence (6th Ed.) § 65a:

" The doctrine of imputed negligence is that in certain relation there shall be visited upon the plaintiff the negligence of another concurring with that of the defendant so as to defeat the action. It is peculiar to contributory negligence and can be invoked only where the negligence of another, for which the plaintiff is responsible, besides that of the defendant, proximately contributes to the injury."

He who in the process of a joint enterprise is engaged in operating a vehicle represents, in so doing, all who are associated with him in that enterprise, and, if he is negligent, any one of them may look to him for damages upon the same basis as that upon which a principal holds an agent liable for his negligent conduct. However it might have been, were the plaintiff suing a third party for injuries due to his negligence in concurrence with that of her husband, here, where she was charging him directly with responsibility for injuries due to his own failure in duty, there was no place for any imputation of his want of care to her, and the sole issues were those having to do with his negligence and her own contributory negligence. The doctrine of joint enterprise was wholly inapplicable to such a situation.

The trial court submitted to the jury the question whether, in view of the circumstances preceding and surrounding the accident, the fact that the defendant momentarily fell asleep constituted negligence on his part. There is surprisingly little authoritative discussion in decisions or text-works as to the relation of sleep to the doctrines of negligence, although in a number of cases it seems to have been assumed that it constitutes contributory negligence for one in a position of peril to become incapacitated by sleep from protecting himself from harm. Grogitzki v. Detroit Ambulance Co., 186 Mich. 374, 152 N.W. 923; Louisville & N. R. Co. v. Hunt's Adm'r, 142 Ky. 778, 135 S.W. 288; Alabama Great Southern Ry. Co. v. Daniell, 108 Miss. 358, 373, 66 So. 730; Stewart v. Southern Ry. Co., 128 N.C. 517, 39 S.E. 51; Sledge v. Weldon Lumber Co., 140 N.C. 459, 53 S.E. 295; Louisville & N. R. Co. v. Holland, 164 Ala. 73, 81, 51 So. 365, 137 Am.St.Rep. 25; Raden v. Georgia R. Co., 78 Ga. 47. In Galveston, H. & S. A. R. Co. v. Brown, 95 Tex. 2, 63 S.W. 305, and Teel v. Ohio River R. Co., 49 W.Va. 85, 38 S.E. 518, the decisions were placed upon the ground that the plaintiff had failed to take reasonable precautions, the need for which arose during a period of sleep, and that such a failure constituted contributory negligence; the court in the first case saying that whether or not plaintiff slept was unimportant, in view of the clear breach of duty. The courts applied in those cases the principle that, where one has come under a duty to use care not to cause injury and has failed to use it, the law pays no heed to his volition or mental condition; as Street puts it:

" If he fails to exercise the degree of caution which the law requires in a particular situation, he is held liable for any damage that results to another just as if he had bound himself by an obligatory promise to exercise the required degree of care." 1 Street, Foundations of Legal Liability, p. 92.

See, also, Holmes, Common Law, p. 110; Pollock, Torts (10th Ed.) p. 458; 1 Beven, Negligence (3d Ed.) p. 5; Heaven v. Pender, L. R. 11 Q. B. Div. 503, 507; 41 Canadian Law Rev. 233.

That principle, however, does not quite reach to the situation before us. While the condition of mind of the person doing harm is not to be regarded in determining liability within the proper field of the doctrines of negligence, yet those doctrines of necessity presuppose that the person whom it is sought to charge is capable of sense perceptions and judgment. 1 Street, Foundations of Legal Liability, p. 72; Salmond, Torts (6th Ed.) p. 21. Upon this basis, by the great weight of authority, the insane person who is wholly irresponsible, is not chargeable with liability upon the ground of negligence. 1 Beven, Negligence (3d Ed.) p. 45; Bigelow, Torts (8th Ed.) p. 109; Wharton, Negligence (2d Ed.) § 87; 2 Jaggard, Torts, p. 871; Clark & Lindsell, Torts (7th Ed.) p. 13; Holmes,...