Carricato v. Carricato

• Decision Date: 13 November 1964
• Court: United States State Supreme Court — District of Kentucky
• Parties: Mary E. CARRICATO, Appellant, v. Mildred Louise CARRICATO et al., Appellees.

Page 85

384 S.W.2d 85

Mary E. CARRICATO, Appellant, v. Mildred Louise CARRICATO et al., Appellees.

Court of Appeals of Kentucky.

Nov. 13, 1964.

William Kiel, Mayer, Cooper & Kiel, Louisville, for appellant Mary E. Carricato.

William Lehnig, Duncan & Lehnig, Louisville, for appellees and cross-appellants Mildred Louise Carricato and Frank Carricato.

John L. Bennett, Hogan, Taylor, Denzer & Bennett, Louisville, for appellees and cross-appellees William E. Lange and William E. Lange, Jr.

WOODARD C. TIPTON, Special Commissioner.

A summary judgment was rendered in the Jefferson Circuit Court, Common Pleas Branch, Fourth Division, in an action in which the appellant was the plaintiff and appellees Carricato were defendants.

This action concerned an automobile collision and in the trial before a jury the matter of liability insurance was injected into the testimony, whereupon on motion a mistrial was ordered. Thereafter it was stipulated by all parties that the matter would be decided on the record by the trial judge and a summary judgment was rendered.

The trial judge held as follows:

1. The sole cause of the collision was the negligence of Mildred Louise Carricato and therefore a summary judgment was given for William E. Lange and William E. Lange, Jr.

2. That Mildred Louise Carricato was not 'Emancipated' and therefore the action of her mother, Mary E. Carricato, against her must fall.

3. That the only basis of the action of Mary E. Carricato against her husband, Frank Carricato, was the family purpose doctrine, but that since the automobile was owned by, controlled by and maintained and used by Mildred Louise Carricato that the action against him must fall.

The three above questions are the only matters involved in this appeal.

On October 9, 1958, at the intersection of 16th and Main Streets, Louisville, Kentucky, the automobile operated by Mildred Louise Carricato, in which Mary E. Carricato was a passenger, collided with the automobile of William E. Lange which was being operated by William E. Lange, Jr. Mildred Louise at the time of the collision lacked two months of being twenty-one years of age. The automobile of Mildred Louise was licensed in the name of her father, Frank Carricato.

Mary E. Carricato testified that Mildred Louise was taking her to work and was proceeding south on 16th Street and just ran through the boulevard stop sign on Main Street at about twenty-five to thirty-five miles per hour when they were hit by a car. Mildred Louise testified that she did not see a stop sign and didn't slow down or stop and went on into the intersection, and at about half way through, and in an instant or two, the cars hit. William E. Lange, Jr., testified in his deposition that he was going west on Main Street and was in the second lane from the north curb (first lane or lane next to curb was a parking lane) and was traveling twenty-five to thirty miles per hour and he saw the red car just flash in front of him--happened so quickly--saw her coming at the stop sign, but there wasn't anything he could do; that his car came to rest at the northwest corner of the intersection and her car, after striking another car, at the southwest corner of the intersection.

In this action Mary E. Carricato sought damages for her personal injuries from all appellees. None of the appellees sought any damages. Mary E. testified as to her personal injuries, but same are not material on this appeal.

The matter of 'Emancipation' is a question of fact and the evidence is as follows: Frank Carricato in his deposition testified that he owned on auto and his daughter owned the auto that was in the collision; that his daughter picked out the car and he helped her finance it and that she paid him back, and it was put in his name because of his credit being established; his daughter made all the purchase payments, the insurance, the gasoline and all upkeep and she was the owner of the auto; his daughter lived in his home, took her meals there, paid no board, made money contributions when needed and when he was off work she did more than her part and paid groceries and rent; since reaching twenty-one years the arrangement has not been any different; she has been on her own since leaving high school at seventeen years and she was emancipated at the time of the collision; he meant by being emancipated she had her own way and did what she pleased and that women always did that and that is what he meant; she drove her car and he drove his.

Mary E. Carricato testified her daughter was emancipated and in explanation stated that she had her own job, bought her own clothes, came and went as she pleased, did as she pleased, bought her own furniture, contributed to household expenses if needed, exercised control of her own funds, had her own bank account; after graduation from high school they have not exercised any control over her or the company she kept; she paid her own income taxes; they did not claim her as an exemption since she became eighteen years of age; there was a definite understanding between her, her husband and daughter that the daughter would be on her own after graduation from high school; she worked before she quit school and financed her last year of high school; as to church or the movies they did not exercise any control over her; she was free to come and go as she desired; she picked out and paid for her furniture; she...