Heslin v. Malone
| Citation | 165 A. 594,116 Conn. 471 |
| Court | Connecticut Supreme Court |
| Decision Date | 11 April 1933 |
| Parties | HESLIN v. MALONE et al. |
Appeal from Superior Court, New Haven County; Alfred E. Baldwin Judge.
Action by Joseph Heslin against John Malone and others to recover damages for personal injuries alleged to have been caused by defendants' negligence. Verdict for plaintiff, and defendants appeal.
No error.
Daniel D. Morgan, of New Haven (Philip Pond, Joseph B. Morse, and Joseph I. Shrebnik, all of New Haven, on the brief), for appellants.
Samuel Campner, of New Haven, for appellee.
This action to recover for personal injuries resulting from an automobile collision was tried at the same time with another and they involved not merely complaints seeking recoveries by the plaintiffs, but also counterclaims seeking recoveries by the defendants. The two plaintiffs were riding in a car owned by the plaintiff Heslin but being driven by the plaintiff Fappiano, and the two defendants were riding in a car owned by the defendant Malone, but being driven by the defendant Kursuski. The plaintiffs claimed to have proved that the collision occurred under these circumstances: The car in which they were riding was proceeding southerly on Broad street in the town of Wallingford at about thirty to thirty-five miles per hour following about forty feet behind a Ford car going in the same direction; the defendants' car was coming northerly at the time at a high speed; it was not proceeding straight upon its right side of the street, but was going in an irregular course from one side to the other; as it approached the Ford car it turned to the left, came in contact with the side of the Ford car, careened off, and, with terrific force, struck the left side of the car in which the plaintiffs were riding, near the door and cowl light. The defendants claimed to have proved that the collision did not occur in this way, but that as the front of the car in which they were riding was opposite the front of the Ford car, the plaintiffs' car, proceeding at a high speed, swung sharply out from behind the Ford, to its left side of the road, and though the driver of the defendants' car tried to avoid the collision by attempting to turn further to its right, the plaintiffs' car collided with the left front of the defendants' car. In the case before us the jury returned a verdict in favor of the plaintiffs, and from the judgment entered on that verdict the defendants have appealed.
The defendants assign as error the failure of the trial court to give a charge in accordance with a request they filed, as to the right of the driver of the defendants' car to assume that the driver of the plaintiffs' car would obey the rules of the road and not attempt to pass the Ford car as they claimed he did; but there was nothing in the circumstances of the accident as claimed by either party which would make such a charge applicable, and there was no error in the failure of the trial court to grant the request. The defendants also assign as error the failure of the trial court to instruct the jury that the doctrine of the last clear chance was not applicable to the facts claimed to have been proved. The complaint alleged facts affording a basis for invoking the doctrine but did not refer to it as such, and no claim was made as to it upon the trial. The trial court fully charged the jury as to the elements which must be established as a basis for a recovery by the plaintiffs, without mentioning the doctrine, and we do not believe that the jury could have considered it. Any intelligent reference to it in the charge would have involved useless explanation, and the trial court adopted the correct and wise course in failing to refer to it.
The complaint as amended stated a cause of action based upon negligence and also one based upon reckless misconduct, and several assignments claim error in portions of the charge dealing with the latter cause of action. We shall point out that there was no error in the charge in so far as it concerned the cause of action based upon negligence, and as the verdict was a general one, any error that may have occurred in those portions of it dealing with the cause of action based upon reckless misconduct would not result in a new trial. Barbieri v. Pandiscio, 116 Conn. 48, 53, 163 A. 469. We therefore disregard these claims of error except one, to which we refer in order to make clear the applicable rule of law. The defendants point to what they deem to be an inconsistency in our decisions in regard to the effect of contributory negligence as a defense to a cause of action for reckless misconduct, citing two cases in which they contend the defense was recognized in cases of this nature. Wolfe v. Ives, 83 Conn. 174, 76 A. 526, 19 Ann.Cas. 752, and Pietrycka v. Simolan, 98 Conn. 490, 120 A. 310; Id., 102 Conn. 42, 127 A. 717. These are both cases of negligence where that negligence was alleged to consist in part in a violation of the statute forbidding the reckless operation of motor vehicles. Being purely negligence actions, contributory negligence of the plaintiff would be a defense, even though the negligence alleged consisted in part of a violation of that statute. It is our settled rule that contributory negligence is not a defense to a cause of action based, not on negligence, but on reckless misconduct. Bordonaro v. Senk, 109 Conn. 428, 433, 147 A. 136; Grant v. MacLelland, 109 Conn. 517, 521, 147 A. 138; Lionetti v. Coppola, 115 Conn. 499, 503, 161 A. 797.
There seems to be a growing tendency in cases involving automobile accidents to allege reckless misconduct on the part of the defendant as well as negligence. There can hardly be a situation where the party guilty of such misconduct is not also guilty of negligence, and ordinarily the only proper purpose which can be served by alleging that the defendant is guilty of reckless misconduct is the possibility of avoiding the defense of the plaintiff's own contributory negligence. The assertion of such a cause of action necessarily complicates the issues in a jury trial and makes the task of the trier, court and jury, more difficult. Unless it can reasonably serve the purpose suggested, counsel owe to the court a duty not to assert it. Moreover, the assertion in connection with a cause of action for negligence subjects the party seeking recovery to possible serious disadvantages by reason of the implication of a general verdict to which we have referred. In the instant case the jury must either have accepted the facts as claimed to have been proven by the plaintiffs, in which event they could not reasonably have found contributory negligence, or else they must have accepted the facts claimed by the defendants, in which event they could not reasonably have found them guilty even of negligence. When it becomes apparent that no useful purpose will be served by asserting a cause of action for reckless misconduct, the trial court may well call the matter to the attention of counsel...
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