Kuharski v. Somers Motor Lines Inc.

• Decision Date: 12 July 1945
• Citation: 43 A.2d 777,132 Conn. 269
• Court: Connecticut Supreme Court
• Parties: KUHARSKI v. SOMERS MOTOR LINES, Inc.

132 Conn. 269

43 A.2d 777

KUHARSKI

v.SOMERS MOTOR LINES, Inc.

Supreme Court of Errors of Connecticut.

July 12, 1945.

Appeal from Superior Court, Hartford County; Mellitz, Judge.

Action by Esther Kuharski, administratrix of the estate of Sophie Kuharski, deceased, against the Somers Motor Lines, Inc., to recover damages for the death of plaintiff's intestate alleged to have been caused by the negligence of the defendant, brought to the superior court and tried to the court. Judgment for plaintiff, and appeal by defendant.

No error.

Harrison D. Schofield, of Hartford, for appellant (defendant).

Luke H. Stapleton, of New Haven, for appellee (plaintiff).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

JENNINGS, Judge.

Plaintiff's intestate, Sophie Kuharski, alias Hild, was killed while riding in the cab of a tractor-trailer truck, belonging to the defendant, at the invitation of Francis Nihill, one of its regular drivers. The trial resulted in a judgment for the plaintiff and the defendant appealed. The finding is attacked and the following statement contains the corrections to which the defendant is entitled.

The defendant is a Massachusetts corporation engaged in operating trucks in interstate commerce between Springfield, Massachusetts, and New York City. Nihill had driven from Springfield to New York, arriving there about 8 a. m. on September 7, 1943. At about 7 p. m. of the same day, Nihill started back to Springfield in the regular course of his employment on the defendant's business. He was accompanied on this trip by Benjamin Kakluskas. When they reached the City Line Tavern near the New York-Connecticut boundary, they stopped and had two or three beers in the company of two girls, one of whom was Sophie. Nihill permitted Sophie to board the truck and resumed his journey toward Springfield. Nihill was seated on the left behind the wheel, Sophie in the middle and Kakluskas on the right. There was ample space for them to sit comfortably. A regulation of the Interstate Commerce Commission prohibited the transportation of riders in the defendant's truck and Nihill had been instructed by the defendant to carry no riders on the truck.

Between the tavern and Milford, Connecticut, Nihill started to swerve from the road about three times and Kakluskas had to grab the steering wheel and help get the truck back on the highway. On one occasion Nihill left the main highway, took a wrong turn and wound up in a deadend street where he almost knocked down a fence. He also drove through a red light and was stopped by the state police. At Milford, he stopped for gas and looked sleepy at that time. For a short time after leaving Milford, which is about fifty miles from Hartford, Kakluskas kept watching Nihill, fearful that he would run off the road. Kakluskas also suggested that Nihill pull over to the side of the road and sleep for a while but Nihill replied that he would not do so because he was more than two hours late. Nihill knew or should have known that his condition was such that sleep was likely to overtake him before he reached Springfield if he continued to drive without pausing for rest and sleep, and his conduct in continuing to drive in his then condition was reckless and wanton. Sophie was asleep most of the time. Kakluskas dozed before reaching Milford and soon after leaving there went to sleep and did not waken until after the accident.

The accident occurred on Main Street in Hartford at about 1:50 a. m. Main Street at that point is forty-four feet ten inches wide. Traffic was light, the weather was clear and the pavement dry. Nihill operated the truck in a northerly direction at an excessive and unreasonable rate of speed and lost control of it as a result of drowsiness. It mounted the westerly curb and struck an electric light pole with such force as to snap it off at the base. There were no marks on the read until the light pole was struck but marks on the road thereafter indicated that the driver tried to get the truck back onto the road. It continued on, however, for nearly one hundred and fifteen feet, struck and broke off a hydrant and came to rest on the westerly side of the road facing north. Kakluskas was rendered unconscious, as was Nihill. The latter was alive when removed from the truck but died on the way to the hospital. Sophie was killed.

The trial court concluded that Nihill was guilty of reckless and wanton misconduct; that, although Sophie was a trespasser, the defendant and Nihill were under a duty to use reasonable care to avoid injuring her after her presence was known; and that the regulation of the Interstate Commerce Commission was no defense.

The rights of a trespasser are limited, especially when his presence in what proves to be a place of danger is the result of an invitation extended by a servant contrary to instructions and the injury results from the acts of the servant. It has proved a difficult task to fit this situation into the conventional doctrine of respondeat superior and the courts are not agreed either on the proper approach or on the conclusions reached. The question came before this court twenty-five years ago in Kalmich v. White, 95 Conn. 568, 111 A. 845. That case involved the injury of a trespasser on the defendant's vehicle caused by the ordinary negligence of the defendant's servant, who had permitted the plaintiff to ride on it. The conflict in the cases was noted but, after full consideration, the rule was stated to be (page 571 of 95 Conn., page 846 of 111 A.) ‘that when the presence of a trespasser in a position of peril becomes known, the duty then arises of using ordinary care to avoid injuring him.’

The defendant recognizes this but claims that the rule should be reconsidered in accordance with the Restatement, 1 Agency, § 242. This reads: ‘A master is not subject to liability for the conduct of a servant towards a person harmed as the result of accepting or soliciting from the servant an invitation, not binding upon the master, to enter or remain upon the master's premises or vehicle, although the conduct which immediately causes the harm is within the scope of the servant's employment.’ It is fair to say that there has been a tendency in the cases toward enlarging the freedom from liability of the master on the ground that an employee has no implied authority to invite third persons to ride with him under ordinary conditions. Driscoll v. Scanlon, 165 Mass. 348, 43 N.E. 100; Liggett & Myers Tobacco Co. v. De Parcq, 66...