Fisher v. Hodge

• Citation: 162 Conn. 363,294 A.2d 577
• Court: Connecticut Supreme Court
• Decision Date: 08 February 1972
• Parties: , 80 A.L.R.3d 1164 Farless C. FISHER, Administrator (ESTATE of Richard F. FISHER) v. Charles E. HODGE et al.

Page 577

294 A.2d 577

162 Conn. 363, 80 A.L.R.3d 1164

Farless C. FISHER, Administrator (ESTATE of Richard F. FISHER) v. Charles E. HODGE et al.

Supreme Court of Connecticut.

Feb. 8, 1972.

Irwin E. Friedman, with whom were Gary J. Friedman, Bridgeport, and, on the brief, Arthur E. Levy, Jr., Bridgeport, for the appellants (defendants).

John J. Hunt, Bridgeport, for the appellee (plaintiff).

Before HOUSE, C.J., and COTTER, THIM, SHAPIRO and LOISELLE, JJ.

HOUSE, Chief Justice.

This is an action brought by the plaintiff as administrator of the estate of his adult son, Richard F. Fisher. The defendants are Charles E. Hodge and the Hertz Corporation, a Delaware corporation licensed to do business in Connecticut. A jury found the issues for the plaintiff and returned a verdict against both defendants in the amount of $62,500. From the denial of the defendant's motion to set aside the verdict and to render judgment in accordance with their motion for a directed verdict, the defendants have appealed to this court.

Although the defendants originally made numerous assignments of error, most of them have been abandoned. The defendants have based their appeal primarily on the single issue of whether the trial judge was correct in charging that the defendant Charles E. Hodge, hereinafter referred to as Charles, a brother of James E. Hodge, hereinafter referred to as James, was a member of James' 'immediate family' as that term was used in a contract between James and the Hertz Corporation.

From the evidence, the jury could reasonably have found the following facts: Charles and James are brothers; both are over twenty-one years of age. Charles, who was single, resided with his parents at 22 Kenosia Avenue, Danbury. James, with his wife and three children, resided in a house known as 24 Kenosia Avenue which is on the same piece of property as the house known as No. 22 and in the rear of it. On March 15, 1968, Charles and James went to the Hertz rental agency which held a franchise from the defendant the Hertz Corporation. There, James entered into a written lease of indefinite duration with the agent of the defendants for the rental of a 1968 Ford. On the reverse side of the lease form, in fine print and among other provisions, appeared the following: '2. Under no circumstances shall vehicle be used, operated or driven: . . . (E) by any person other than Customer, except (1) a member of Customer's immediate family; (2) Customer's employer; (3) an employee of Customer in the course of such employee's regular and usual employment by Customer; PROVIDED that any such person specified in (1), (2) or (3) must have first obtained Customer's permission, and PROVIDED FURTHER that no person, including Customer, shall operate or drive vehicle unless such person is a qualified licensed driver and, if a member of Customer's immediate family, is 21 years of age or older. The foregoing restrictions are cumulative, and each of them shall apply to every use, operation or driving of vehicle.' On April 12, 1968, the defendant Charles, a licensed operator, was driving the rented car with the permission of his brother James when it collided with the automobile driven by Richard Fisher, who died as a result of the collision. The court instructed the jury as to the provisions of § 14-154 of the General Statutes concerning the liability of the owner for damage caused by a leased car. ¹ With respect to the restrictive clause in the rental agreement, the court charged that 'the construction given by the Court to the words, 'a member of Customer's immediate family' is that the defendant, Charles E. Hodge, brother of James E. Hodge, was a member of James E. Hodge's immediate family and in operating the car in question, if he did so and if he did so with the permission of his brother James, would create a statutory liability on the part of the Hertz Corporation if he did so negligently, and if his negligence was the sole proximate cause of, or substantial factor in, causing the collision between the two cars.' The defendants excepted to the charge and maintain in their appeal to this court that the contract provision limiting use of the automobile by individuals other than the customer and a member of his immediate family is sufficient to absolve the defendant the Hertz Corporation from liability under § 14-154 of the General Statutes when the automobile was being driven by the brother of the lessee.

Much of the argument in this case has centered around the meaning of the term 'immediate family' as used in the rental contract. The word 'family' is 'a word of great flexibility, its meaning varying according to the connection in which it appears.' Ballentine, Law Dictionary (3d Ed.). It is a word used in a variety of significations. Rathbun v. Aetna Casualty & Surety Co., 144 Conn. 165, 168, 128 A.2d 327. In Kiska v. Skrensky, 145 Conn. 28, 33, 138 A.2d 523, 526, this court noted the ambiguity of the term and the cases in which it had been interpreted in various ways and commented: 'Throughout these and the many other cases involving the definition of 'family,' we have said that the word is one of flexible and uncertain meaning and will be construed differently as the circumstances require, in order that the meaning in which it is apparently used in any given case may be carried into effect. Farnam v. Farnam, 83 Conn. 369, 375, 77 A. 70. The word has several meanings. Primarily, it means a collective body of persons who live in one house under one head or management. Secondarily, it consists of persons of the same lineage or those who descend from one common progenitor. Fratellanza Italiana v. Nugnes, 114 N.J.Eq. 185, 187, 168 A. 589.' On the other hand, Webster's Third International Dictionary reverses that order of priority of meaning, giving 'a group of persons of common ancestry' priority in meaning over 'a group of individuals living under one roof.' The trial court concluded that in the context of this rental agreement Charles was a member of the 'immediate family' of his brother James. We find no error in this conclusion, particularly because of the qualifying word 'immediate.' When used in connection with the word 'family' as meaning 'a group of persons living under one roof' the limiting word 'immediate' has no relevance because there exists no degree of membership in the group. An individual is either a member of the group living under the one roof or he is not. On the other hand, when 'family' is defined as a group of persons of common ancestry, the word 'immediate' is used to limit the degree of relationship which will be considered and the phrase 'immediate family' takes on some meaning. Even then 'immediate' does not provide us with a universal test which may be invariably...