Fireman's Fund Indemnity Co. v. Longshore Beach and Country Club, Inc.
| Decision Date | 07 February 1941 |
| Parties | FIREMAN'S FUND INDEMNITY CO. v. LONGSHORE BEACH AND COUNTRY CLUB, Inc., et al. |
| Court | Connecticut Supreme Court |
Appeal from Superior Court, Fairfield County; John A. Cornell Judge.
Action by Fireman's Fund Indemnity Company against the Longshore Beach and Country Club, Incorporated, and others claiming subrogation to the rights of the plaintiff's assured and damages based upon negligence and a breach of contract of bailment. Trial to the court resulted in judgment for the defendant, and plaintiff appeals.
No error.
John Keogh, Jr., of South Norwalk (G. Francis McKendry, of South Norwalk, on the brief), for appellant.
Matthew E. Hanna, Jr., of Stamford, for appellees.
Argued before MALTBIE, C.J., and AVERY, BROWN, JENNINGS and ELLS JJ.
An automobile insured by the plaintiff was damaged when driven by James Plant into a yacht basin. Upon payment of the loss, the plaintiff, as subrogated to the rights of its insured, brought an action against the operators of defendants' club, claiming negligence on the part of an attendant in parking the car in an improper place, negligence on the part of Plant, an employee of the club, in driving the car into the yacht basin, and in a second count, a breach of a contract of bailment. The major issue is whether Plant was acting within the apparent scope of his employment.
A brief statement of facts found by the trial court and not questioned by assignments of error is as follows. The defendants provided at their club house a number of boys and young men to park the cars of members as they arrive and to procure and deliver such cars to them on leaving. Their compensation was wholly derived from tips. South of the club house an inlet from Long Island Sound forms a yacht basin, on the east and west sides of which are docks. To the east of the basin there is a large parking space. To the west there is an elliptical drive serving a boat house, a caddy house, in which are locker rooms for members, and bathhouses. Immediately east of the easterly side of the elliptical drive is the westerly side or dock of the yacht basin. This drive was not provided for parking purposes, for cars stopped there would make it difficult for others to drive around, but certain members, including Fred Giorchino, occasionally parked their cars there because of its proximity to the locker rooms and showers.
Giorchino, long a club member, drove up to the club house at 4 o'clock one Sunday afternoon, to play golf. Upon his arrival he surrendered his car to a parking attendant, as was his custom, and the latter parked it somewhere near to and on the westerly side of the yacht basin, facing east toward the basin. Giorchino played golf, and when he had finished, the same attendant delivered it to him, but upon being informed that he was not then leaving, took the car back to the same place. Giorchino had dinner at the club house, after which he came out onto the porch to depart, at about 10 o'clock. There were no parking attendants at hand. Plant, a watchman employed by the defendants, had finished his work, and had come out of the club house on his way home. He was attired in a blue uniform; the parking attendants wore green ones. Giorchino asked him if he could drive a car, to which Plant replied ‘ Yes.’ Giorchino then said ‘ I will give you a tip of fifty cents if you will get my car.’ Plant assented, and departed, but did not return. A search was made. The car was found submerged in the waters of the yacht basin. Plant was in the driver's seat, drowned.
On certain nights in the week Plant was employed by the defendants to patrol the grounds from 9 until 5 o'clock the next morning, as a night watchman. On Saturdays and Sundays his duties were quite different. He was watchman at the gate to the grounds, a mile from the club house, and his hours of employment were from noon until 9 o'clock. His duty was to prevent any but club members from entering the grounds, and on the day and evening in question he was thus employed. He was paid $60 a month, and received certain meals. He was about sixty-five years of age. He had no authority to park or deliver cars for members at any time and had none from the defendants when Giorchino engaged him to obtain his car. There was no testimony that he had ever done so on any other occasion, for anyone, and it was not known whether he was capable of doing so. On the night in question Plant was through work at 9 o'clock. In accordance with his custom he went to the club house kitchen where he ate a lunch before leaving for home, and walked out onto the porch to depart. Then came the interview with Giorchino, and its tragic consequences.
Upon these facts the plaintiff concedes, as it must, that Plant was not acting within the scope of his actual authority, but claims that he was acting either within the scope of his implied or his apparent authority. In addition to the unchallenged facts found, the court found that Giorchino knew the regular parking attendants were the only persons authorized to park cars, that Plant was not one of them, but a watchman only, and that he had never driven cars for the defendants or other members. The plaintiff claims these facts were found without evidence, and says ‘ it is in one sense the very crux of this appeal.’ Giorchino's own testimony is that each week-end when he went to the club Plant was at the gate, that he knew why he was there, and that he never saw him park cars. When he came out of the club, he asked Plant if he could drive. He recognized Plant and knew he was the gateman. From this and other testimony concerning Giorchino's rather intimate knowledge of the parking situation and from the testimony of other...
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