Durso v. A. D. Cozzolino, Inc.

• Decision Date: 08 May 1941
• Citation: 20 A.2d 392,128 Conn. 24
• Court: Connecticut Supreme Court
• Parties: DURSO v. A. D. COZZOLINO, Inc.

20 A.2d 392

128 Conn. 24

DURSO

v. A. D. COZZOLINO, Inc.

Supreme Court of Errors of Connecticut.

May 8, 1941.

Appeal from Superior Court, New Haven County; William H. Comley, Judge.

Action by Philomena Durso against A. D. Cozzolino, Incorporated, to recover damages for personal injuries alleged to have been caused by negligence of defendant brought to the Superior Court in New Haven County and tried to the court. From a judgment for defendant, plaintiff appeals.

Error and case remanded with direction.

Argued before MALTBIE, C. J., and AVERY, BROWN, JENNINGS, and ELLS, JJ.

Louis Feinmark and Nathan Winnick, both of New Haven, for appellant.

John E. McNerney and Francis J. Moran, both of New Haven, for appellee.

MALTBIE, Chief Justice.

The plaintiff brought this action to recover damages suffered by reason of the negligence of Marie Cozzolino in operating an automobile in which the plaintiff was riding as a guest and seeks to hold the defendant corporation, owner of the automobile, liable upon principles akin to those involved in the so-called family car doctrine. The corporation is a successor to a business created and established by Marie's father, A. D. Cozzolino. He owns 25 per cent of the stock, his wife owns 50 per cent. and his wife's brother 25 per cent. Ever since the organization of the corporation, Cozzolino has been its managing head and in control of its business and activities. As manager of the corporate business, he purchased the automobile in question, and the corporation has paid for its maintenance, and insured it for both business and personal uses. The automobile was purchased for the use of Cozzolino in the corporate business and, when not needed by him of Marie in going to and from school and for other personal purposes. With the knowledge and consent of the defendant, she had general use of it on all occasions when it was not being used by Cozzolino in business. This use by her was an incident to the stock ownership of Mr. and Mrs. Cozzolino in the corporation. When the car was needed for business purposes Marie used a car owned by her father and on occasions a truck to go to and from school. The corporation also furnished Mrs. Cozzolino a car for her personal use. The plaintiff was injured while being driven from her home to that of the Cozzolinos, where she was to have dinner. The trial court gave judgment for the defendant upon the ground that Marie was not the agent or employee of the defendant or engaged upon its business when the accident occurred.

It is the established doctrine in this state that where the head of a family owns and maintains a car for the general use of members of the household, and a person is injured by the negligence of one of them who has general authority to use it, and is using it at the time within the scope of general purposes for which it is intended, he may recover damages from the owner. O'Keefe v. Fitzgerald, 106 Conn. 294, 297, 137 A. 858; Marshall v. Fenton, 107 Conn. 728, 730, 142 A. 403; Maher v. Fahy, 112 Conn. 76, 80, 151 A. 318. So far as this state is concerned, the doctrine originated in the case of Wolf v. Sulik, 93 Conn. 431, 106 A. 443, 4 A.L. R. 356. While we were there primarily considering liability under a statute, the discussion went beyond its effect and set forth certain principles which have since been applied, despite its repeal. Stickney v. Epstein, 100 Conn. 170, 176, 123 A. 1.

In the Wolf case, after stating the family car doctrine as it had been established in other jurisdictions, we said (page 436 of 93 Conn., page 444 of 106 A., 4 A.L.R. 356): "The inherent justice of the rule thus stated is apparent, and the chief reason why some courts have declined to follow it is because, on the facts of the case, they could not spell out the relation of master and servant, which at the common law must necessarily be established before the rule respondeat superior becomes applicable at all. * * * The difficulty of formulating any satisfactory explanation for all of the recognized applications of the rule respondeat superior is well understood, but it is generally accepted as a necessary rule of public policy and social justice. Under an older and simpler economic system, the rule was restricted in its application to the relation of master and servant, and in its origin that relation rested on the right of one man to control the conduct of another. But theoretically, as well as practically, the master's responsibility for the negligence of his servant extends far beyond his actual or possible control over the conduct of the servant. It rests on the broader ground that every man, who prefers to manage his affairs through others, remains bound to so manage them that third persons are not injured by any breach of legal duty on the part of such others, while they are engaged upon his business and within the scope of their authority. In this case the defendant desired to maintain a pleasure car for the convenience of her husband. If in carrying out her purpose she had employed a chauffeur to drive him about, she would have been liable, on the principle above stated, for the chauffeur's neglect while so engaged. Now, suppose that she chooses to eliminate the chauffeur and to authorize her husband to drive himself about. There...