Hall v. Sera

• Citation: 152 A. 148,112 Conn. 291
• Parties: HALL v. SERA et al. (two cases). MORTON v. SAME.
• Decision Date: 07 November 1930
• Court: Supreme Court of Connecticut

152 A. 148

112 Conn. 291

HALL v. SERA et al. (two cases).

MORTON v. SAME.

Supreme Court of Errors of Connecticut.

November 7, 1930

Appeal from Superior Court, Hartford County; Alfred E. Baldwin Judge.

Separation actions by Franklin E. Hall, by Alice M. Hall, and by Richard Morton against Robert Sera and another, tried to a jury. After verdicts and judgments for plaintiffs, the motion of the defendant the John Hancock Mutual Life Insurance Company to set aside verdicts and judgments as to it was denied, and it appeals.

No error.

William A. Bree and H. Frederick Day, both of New Haven, for appellant.

Ralph O. Wells and Henry C. Stone, both of Hartford, for appellees.

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

HAINES, J.

The three plaintiffs were occupants of an automobile driven by Franklin E. Hall, and which was in collision with another car driven by the defendant Sera, about three miles south of Suffield on the public highway leading to Hartford on the 27th day of November, 1929. The John Hancock Mutual Life Insurance Company, the alleged employer of Sera, was made defendant with him, and the cases were tried together, resulting in verdicts for the plaintiffs in all the cases against both defendants. Sera made default of appearance, and took no appeal, but the insurance company moved to set aside the verdicts rendered against it; the court denied the motion, and the insurance company appealed.

The jury could reasonably have found from the plaintiffs' evidence that, shortly before 4 o'clock in the afternoon on the day stated, the plaintiff Franklin E. Hall was driving his car north, having as passengers his mother. Alice M. Hall, the plaintiff Richard Morton, a child of two years, and Monica Mooney, while the defendant Sera was driving in the opposite direction and following another car driven by Potter. Sera was driving more rapidly than Potter, and the latter slowed down to permit him to pass, which he attempted to do without warning and without reducing his speed, and in so doing turned to his left onto the opposite side of the traveled way and collided head-on with the car driven by Hall, causing various and more or less serious injuries to each of the plaintiffs, and demolishing Hall's automobile.

Under the assignment of error for failure to set aside the verdicts, it is not denied that the negligence of Sera was the proximate cause of the plaintiffs' injuries. Only two claims are made in argument and brief-that the defendant Sera was an independent contractor, and not the agent of the insurance company, so as to make the latter responsible in these actions as the principal; and that the damages awarded to Alice M. Hall were excessive. The appellant contents itself with making the latter statement in its brief and pursuing it no further. A study of the record satisfies us that we cannot hold the damages excessive under the circumstances.

The question of the agency of Sera is to be determined by the application of well-known principles of law to such facts as the jury could reasonably have found to exist in view of the evidence before them. They could thus have found that Sera was under a written contract of employment with the company by which he was to devote all his time to the work required of him; that he had been hired by Brennan, an officer of the company, to whom he referred as " my boss" and " my superintendent" ; that he was furnished a book of instructions to govern his conduct as such employee; that a list of collections to be made was given him each week, and it was his duty to make the collections and turn them in to the company with a full report, at a definite time; that it was necessary for him to have a car to properly perform some of his work: that, like many other agents of the company similarly situated, he was driving and maintaining his own car without the assistance of the company, but with its knowledge and acquiescence; that at the time of the accident he was thus driving to reach Hartford and turn in certain collections he had made and make his report, and was required by the terms of his employment to do so before 5 o'clock that afternoon; that he also had in his possession certain policies which he was required to deliver to parties who had taken out insurance. In addition to these facts it also appears that he was, at the time of the trial, receiving compensation for a personal injury which he himself suffered in the same accident, under a voluntary agreement with the employer, notice of which, under the Workmen's Compensation Act (Gen. St. 1930, § 5223 et seq.), had been sent to the compensation commissioner over the defendant company's own signature, and wherein it was stated that Sera had suffered personal injuries in the course of his employment by the company and arising out of the employment. The appellant claims that agency did not exist because the company did not have control of the operation of the car at the time of the accident. The important question, however, is not whether the company had physical control of the movements of the car at the time of the collision, but rather whether it had the right of general control over the driver himself-a question of status. When the collision occurred Sera was acting under the orders of his employer to turn in his collections as agent and to report at Hartford before 5 o'clock. In performing this duty he was acting under the company's control, and it is immaterial whether he was driving a car, driving a horse, or walking. " The method of determining the driver's compensation for the services he rendered *** is not of controlling importance, nor is the fact that the driver used his own automobile, maintained by himself, in performing his work." Lassen v. Stamford Transit Co., 102 Conn. 76, 82, 128 A. 117, 119; Aisenberg v. Adams Co., Inc., 95 Conn. 419, 423, 111 A. 591; Dillon v. Prudential Ins. Co., 75. Cal.App. 266, 242 P. 736; Burgess v. Garvin, 219 Mo. App.162, 272 S.W. 108; Dishman v. Whitney, 121 Wash. 157, 209 P. 12, 29 A.L.R. 460; Lewis v. National Cash Register Co., 84 N.J.Law, 598, 87 A. 345; Auer v. Sinclair Refining Co., 103 N.J.Law, 372, 137 A. 555, 54 A.L.R. 623. From the evidence above summarized and other evidence before it, the jury could not reasonably have found otherwise than that Sera was an employee and agent of the company acting within the scope of his employment, and was not an independent contractor. The trial court did not err in refusing to set aside the verdict for the reasons stated.

Several errors are assigned upon the admission of evidence. A witness was allowed, while upon the witness stand, to draw a sketch indicating the relative positions of the cars as he saw them after the collision, and this was admitted in evidence over objection. The accuracy of the sketch was a proper subject for cross-examination, and the fact that it was not drawn to a scale and was not an authenticated accurate map of the locality did not render it inadmissible, but only affected its weight. The trial court was acting within a reasonable exercise of its discretion in the admission of it. Petroman v. Anderson, 105 Conn. 366, 370, 135 A. 391...