Card v. Bissing

• Citation: 157 A. 644,114 Conn. 71
• Court: Connecticut Supreme Court
• Decision Date: 22 December 1931
• Parties: CARD v. BISSING et al. (two cases).

157 A. 644

114 Conn. 71

CARD v. BISSING et al. (two cases).

Supreme Court of Errors of Connecticut.

December 22, 1931

Appeal from Superior Court, Litchfield County; Frank P. McEvoy Judge.

Action for injuries by Bernice Card and by Gordon Card against Harry Bissing and Elsie A. Bissing. Plaintiff recovered judgment in each case against both defendants. From a judgment in the first case, the defendant Elsie A. Bissing appeals, and, from the judgment in the second case, both defendants appeal.

Error. Judgment against defendant Elsie A. Bissing reversed in each case, and causes remanded, with direction.

Samuel A. Herman, of Winsted, J. Clinton Roraback, of Canaan, and Lester W. Schaefer, of Winsted, for appellants.

Thomas J. Wall and Thomas F. Wall, both of Torrington, for appellee.

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

HAINES, J.

These are companion cases, growing out of the same automobile collision, each brought against the named defendant and Elsie A. Bissing, and were tried together. There are a number of questions discussed which are not included in the statement in the request for a finding of the questions of law sought to be reviewed. This statement, which is required by Practice Book, p. 311, § 18, is for the guidance of the court in making up its finding of facts, and indicates to opposing counsel the questions they must be prepared to meet. We consider those assignments only which relate to the questions listed in the request for a finding, and one of these, which is common to both cases, is whether Harry Bissing was the agent of Elsie A. Bissing. Corrections are sought in the finding bearing on this subject. The record discloses, not that we have there a conflict of evidence, but that the witnesses do not disagree in any essential particular as to the circumstances. It appears that the car which the defendant Harry Bissing was driving was owned by him and had been bought for the express purpose of his use in the performance of a contract, he had as engineer and builder, in the construction of a house and the development of an estate for a customer at Cornwall Bridge. He drove the or back and forth from his home to his work, and to transfer material, tile, bricks, and whatever was necessary for the work in and; at the time of the collision he was us transporting some material in furtherance of this work. His wife. Elsie A. Bissing, owned and conducted a poultry and egg farm; he did not always take eggs which she sent to Torrington, but frequently did so Thursdays, at which time he also did marketing for her. At the time of the accident, which was on a Monday, he had in his car, beside his own building materials, some eggs in cases, which he was to deliver in Torrington for his wife. His family consisted only of his wife, and she never drove the car nor did she in any way control it at the time of the collision. The finding as made should be amlified by such further subordinate facts as we have detailed. The trial court concluded that the transporting of his building materials by this defendant " was merely an incident of the trip." Upon the finding as we have amended it, it could not logically or reasonably be so held. The use of his own car for the very purpose for which he had purchased it, was the main purpose of this trip, and the carrying of the eggs was an incidental feature of the situation. It was no more than an accommodation by him as the husband, since he was going to Torrington on his own business that day. It necessarily follows that Harry Bissing was not as matter of law the agent, servant, or employee, of Elsie A. Bissing, and the judgment against the latter was erroneous and must be reversed in both cases. Lassen v. Stamford sit Co., 102 Conn. 76, 128 A. 117; Hall supra, 112 Conn. 291 152 A. 148, and cases cited. The next question, presented only by the appeal in the Gordon Card case, relates to the effect upon the plaintiff's right of recovery of the lack of his signature on his operator's license. The finding is to the effect that the plaintiff was a resident of North Adams, Mass., and owned the car he was driving; it being duly registered under the laws of the state of Massachusetts; that he was duly licensed to operate his car, but had signed or indorsed his operator's license. Attack is made upon the conclusion of the court that the plaintiff was, under these circumstances, a licensed driver and entitled to maintain this action in Connecticut.

We take judicial notice of the statutory provisions of other states. General Statutes, § 5599; Tuttle v. Jockmus, 106 Conn. 683, 138 A. 804. One of the provisions of the Massachusetts statute was: " Every person licensed to operate motor vehicles as aforesaid shall endorse his usual signature on the margin of the license, in the space provided for the purpose, immediately upon the receipt of said license, and such license shall not be valid until so endorsed." Mass. Public Acts 1921, c. 403, § 1; as amended by Id. 1923, c. 464, § 3 and Id. 1925, c. 283. Under the General Statutes of Connectiout, section 1532 (b) Revision of 1918, it was provided that " Every person licensed to operate motor vehicle shall indorse his signature on the back of his license, in a space provided for the purpose, and such license shall not be valid until so indorsed" ; and in section 1565 it was further provided that no recovery shall be had in the courts of this state " if said motor vehicle be legally registered but was being operated by an unlicensed person in violation of any provision of sections 1530, 1531 or 1532." These sections were a part of chapter 77 of the Revision of 1918, which was repealed and for which a substitute law was enacted in chapter 233, Public Acts of 1919; and that chapter was in turn revealed and a substitute law enacted by chapter 400 of the Public Acts of 1921. The pertinent portion of section 20 of chapter 400 reads: " Every person licensed to operate a motor vehicle shall, before operating any motor vehicle upon a public highway, indorse his signature on the back of his operator's license in a space provided for the purpose. *** Any person who shall violate the provisions of this section shall be fined" ; while section 61 provided that " no recovery shall be had in the courts of this state by the owner of a motor vehicle *** if such motor vehicle be legally registered but was being operated by an unlicensed person in violations of any provision of sections fifteen, twenty or twenty-one of this act." Section 61 was amended by a provision regarding renting or leasing in chapter 195, § 21, of the Acts of 1925, and was repealed by section 2 of...