O'Keefe v. Fitzgerald

• Decision Date: 11 June 1927
• Citation: 106 Conn. 294,137 A. 858
• Parties: O'KEEFE v. FITZGERALD ET AL.
• Court: Connecticut Supreme Court

137 A. 858

106 Conn. 294

O'KEEFE v. FITZGERALD ET AL.

Supreme Court of Errors of Connecticut.

June 11, 1927

Appeal from Superior Court, Hartford County; L. P. Waldo Marvin Judge.

Action by Mary O'Keefe against Joseph Fitzgerald and one Lose. Verdict for plaintiff against both defendants. From an order setting aside the verdict as to the defendant Lose, plaintiff appeals. No error.

Sister driving brother's car with special permission, was merely gratuitous " bailee."

Edward J. Daly, of Hartford, and Thomas P. Dunne, of Meriden, for appellant.

Ralph O. Wells, of Hartford, for appellee.

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

HAINES, J.

The plaintiff, on September 30, 1925, was riding as a guest in the car of the defendant Lose operated by his sister, Lydia A. Lose, when it came in collision with a car operated by the defendant Fitzgerald. The plaintiff suffered personal injuries as a result of the collision and brought this action against both defendants, alleging negligence. The jury gave verdict for $2,000 against both defendants, but the court, on motion, set aside the verdict as to the defendant Lose. The correctness of that action by the court is the sole question raised by this appeal of the plaintiff, and all the evidence applying to the family car doctrine has been certified for our consideration.

The jury could reasonably have found from the evidence before them that Lydia A. Lose, the sister of the defendant, and the driver of his car at the time of the accident, was employed by him in his fruit and confectionery store, and received wages from him as such employee; that she lived in his family and had done so for six years, during which time she had had no other home; that she was a member of his family, receiving her meals and occupying a bedroom there; that the family consisted of the defendant and his wife and children and the father and mother of the defendant and the sister herself that she learned to drive an automobile three years before, using this car with the defendant's consent, and being taught by a friend of the defendant; that she and the defendant were the only members of the family licensed to drive; that she had no car of her own and had seldom driven any other car than this; that on the day in question, she wanted the car to go to a church wedding with her guests, whom she had previously invited to go with her, and had told the defendant the night before of her wish, and asked his permission to use the car, and he told her it would be " perfectly all right" ; that on the morning of the day in question she told the defendant she was going to use the car as arranged the night before; that, neither on this nor any other occasion, was the car being used by her for the purposes of the store, the car being maintained by the defendant for pleasure only; that the defendant never asked her to drive the car for him and that she was never paid for driving it; that, if other members of the family were taken out in the car, the defendant usually drove it, though she had sometimes done so as an accommodation when he could not go; that she used the car on the average of once a week, always for her own purposes, and the defendant never restricted her in the use of it; and, finally, that she always got special permission from the defendant when she wanted to use the car and had " borrowed" it for her own purposes on this day. The verdict necessarily implies that the jury found there was negligence on the part of Miss Lose while driving the defendant's car on this occasion. It also necessarily implies that the jury held the defendant legally responsible for the negligence of his sister, under all the circumstances of the case.

The trial court set aside the verdict as to this defendant Lose because it felt the negligence of the driver did not involve the defendant in legal liability. This conclusion involves the so-called " family car doctrine," as it is recognized in this state. The limitations of the common-law rule of respondeat superior were such that the increased use of the automobile, and the resulting claims for damages for injuries by negligence, resulted in the enactment, in 1905, of a statute by which the owner of a horse or automobile who intrusted it to his agent, bailee, servant, or employee, to be used upon the public highways, or who rented or loaned it to an inexperienced or incompetent person for such use, while in the performance of the owner's business within the scope of his authority, is made responsible for the negligent injury resulting to another from such use. This statute was repealed in 1921 and no further legislation upon the subject has been enacted. Public Acts of 1905, c. 216, § 4; General Statutes, Rev. 1918, § 1572; Public Acts 1921, c. 334.

In 1923, in Stickney v. Epstein, 100 Conn. 170, 123 A 1, we had occasion to consider a case where it was sought to hold the owner of an automobile responsible for the negligence of his wife in driving a car used and maintained by him for the business, use, pleasure, and convenience of his wife and family and then used by her in furtherance of that purpose. The wife had " general authority" from him to take and use the machine when and as she pleased. She was using it under this authority and for the purpose for which the owner maintained it, when the injury occurred. It was claimed by the plaintiff that--

" The purpose for which the defendant's wife was operating the automobile was a family purpose, and it was the purpose for which the defendant intended the automobile to be used, and at the time the plaintiff was injured the automobile was being used by the defendant's wife in carrying out the purpose for which the defendant maintained the automobile."

We there referred to the language of this court in Wolf v. Sulik, 93 Conn. 431, 106 A. 443, 4 A.L.R. 356, and to the cases which had then been collected in Birch v. Abercrombie, 50 L.R.A. (N. S.) 59; McNeal v. McKain, 41 L.R.A. (N. S.) 775, and suggested that, while there was some conflict in the decisions, the increasing weight of authority seemed to be that--

" When a motorcar is maintained by the pater familias for the general use and convenience of his family, he is liable for the negligence of a member of

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