Levy v. Senofonte

• Decision Date: 19 August 1964
• Docket Number: No. CV,CV
• Citation: 2 Conn.Cir.Ct. 650,204 A.2d 420
• Court: Connecticut Circuit Court
• Parties: Cecelia LEVY v. Joseph SENOFONTE et al. 14-614-2769.

Page 420

204 A.2d 420

2 Conn.Cir.Ct. 650

Cecelia LEVY v. Joseph SENOFONTE et al.

No. CV 14-614-2769.

Circuit Court of Connecticut, Fourteenth Circuit.

Aug. 19, 1964.

Edmund T. Curran, Hartford, for plaintiff.

John J. Mahon, Hartford, for defendants.

RUBINOW, Judge.

On September 8, 1959, at about noon, the plaintiff's 1959 Buick was being operated in a northerly direction on Groton Street in Old Lyme by the plaintiff's daughter, Norma Tanguay. The plaintiff did not know how to drive, and, since the death of her husband, the Buick had been driven customarily by Mrs. Tanguay. At this time, the plaintiff and Mrs. Tanguay, with Mrs. Tanguay's two small children, were vacationing for several days in Old Lyme, occupying a cottage owned by Mrs. Tanguay's father-in-law. On this particular occasion Mrs. Tanguay, unaccompanied by the plaintiff, was returning from the beach, where, in preparation for the afternoon there, she had brought from the cottage miscellaneous beach equipment for the use of the occupants of the cottage, including the plaintiff.

As Mrs. Tanguay was thus proceeding northerly on Groton Street, she entered an intersection formed by Groton Street and A Street, the latter intersecting Groton Street at right angles. At this point, the intersection was about eighteen feet wide. when the rear portion of the Buick was about twelve feet into the intersection, the right rear fender and bumper of the Buick were struck by the front of a 1957 Chevrolet being driven westerly on A Street by the defendant Joseph Senofonte, as agent-servant of the defendant Lucy Senofonte. As a result of the impact, the Buick was spun around, so that it came to rest facing in a southerly direction, with its front end northerly of the northerly line of A Street.

In this action, the plaintiff seeks to recover for the property damage to the Buick, alleging that the damage resulted from the negligence of the defendants. The defendants deny their negligence and assert that the plaintiff cannot recover, in any event, because Mrs. Tanguay was negligent and her negligence is to be imputed to the plaintiff as the owner of a family car.

The first issue to be considered, then, is that of the alleged negligence of the operators. Both operators were familiar with the intersection, and both knew that the intersection was a hazardous one because of a high hedge, on the southerly side of A Street, that hid northbound traffic on Groton Street from west bound traffic on A Street. This hedge extended to about three feet from the beginning of the intersection, so that the utmost watchfulness and caution were due from both operators. In spite of their knowledge of the hazards of the intersection, neither operator sounded his horn. Moreover Mrs. Tanguay was not keeping a careful lookout, for she did not see the Chevrolet before the impact, even though the Chevrolet was so close to the intersection that Mrs Tanguay should have seen it when she reached the perimeter of the intersection. Furthermore, she filed to grant the statutory right of way to Senofonte. ¹ Senofonte, however, was operating the Chevrolet at a speed (as reflected in the fact that the Buick was spun around by the impact) that was clearly greater than reasonable at a 'blind' intersection of this kind. Even his admitted speed of twenty miles per hour, equal to twenty-nine feet per second, was excessive, for at that speed, after making allowances for 'reaction time,' he would not have had enough braking distance to stop short of the intersection, even if he attempted to stop as soon as he was in a position to see northbound traffic. Although he had a statutory right of way, he was still bound to exercise the care of a reasonably prudent person (Carlin v. Haas, 126 Conn. 8, 14, 8 A.2d 530; Kleps v. Dworkin, 127 Conn. 648, 652, 19 A.2d 421), and at that blind intersection a reasonably prudent person would proceed slowly enough to be able to stop, if necessary to do so, before proceeding into the intersection. Any lower standard of care at an intersection of this kind would in effect, relieve a westbound operator of the duty of exercising due care in the exercise of his right of way. The court finds that both operators were negligent and that the negligence of each was a substantial factor in causing the damage to the Buick.

This finding brings the court to the second of the defendants' defenses, namely that the contributory negligence of Mrs. Tanguay bars a recovery by the plaintiff. The validity of this claim depends upon the validity of a claim of fact and a claim of law. The claim of fact is that the Buick being operated by Mrs. Tanguay was a family car, and the claim of law is that the negligence of Mrs. Tanguay, as the operator of a family car, is imputable to the plaintiff.

Taking up first the claim that the Buick was being operated as a family car, the court must at the outset determine whether the family car statute (General Statutes, § 52-182) applies here. ² It is not the purpose of this statute to create new rights or duties; its purpose is to formulate 'a detail of procedure, merely.' Baker v. Paradiso, 117 Conn. 539, 545, 169 A. 272. This 'detail of procedure,' first, creates a presumption, and, second, specifies that 'the defendant' shall have the burden of rebutting it. Read literally, the statute could be construed as having two independent provisions, one creating the family car 'agency' presumption and the other allocating the burden of rebutting that presumption. That construction, however, in the present case, would require that the court ignore the burden of proof provision of the statute, for it given effect, that provision would require the court to impose upon 'the defendant' the burden of rebutting the same presumption that the other provision of the statute created in his favor. Hence, treating the statute as having two independent provisions makes an absurdity of the statute. The court must conclude, therefore, that the statute can logically be read only as an indivisible unit, and that, accordingly, the statute applies only to cases where a plaintiff invokes the statute to assist a recovery against a defendant, and not to cases like the instant case, where a defendant invokes the statute to prevent a recovery by a plaintiff.

That the family car statute does not apply to the present case means, then, that the statutory presumption is not available to assist the defendants. They claim, however, that, even without any assistance from the statute, they have established that the plaintiff's Buick was a 'family car,' a phrase defined in the first family car case in this state, Wolf v. Sulik, 93 Conn. 431, 436, 106 A. 443, 444, 4 A.L.R. 356, as 'a motor car * * * maintained * * * for the general use and convenience of [the owner's] family.' The plaintiff, on the other hand, claims that the word 'family' in this definition means 'household,' and that the Buick was not a family car because Mrs. Tanguay and the plaintiff lived in separate households. It is true that, in the family car doctrine, the phrase 'the owner's family' has been held to mean a 'member of the * * * [owner's] immediate household.' Prosser, Torts (3d Ed.) p. 497. For example, in Smart v. Bissonette, 106 Conn. 447, 138 A. 365, the court applied the family car doctrine where the operator was a nonrelative housekeeper in the owner's household. On the other hand, in Dibble v. Wolff, 135 Conn. 428, 65 A.2d 479, the court had presented to it the converse of Smart v. Bissonette, i. e. a case where the operator was a relative not living in the owner's household, and the court 'assumed,' but did not hold, that the operator was not a member of the 'family.' ³ 3] In the instant case, it is unnecessary to determine whether the family car doctrine applies if the operator and owner do not live in the same household, for, although Mrs. Tanguay and the plaintiff lived apart during the rest of the year, they were living together while at Old Lyme and were part of the same household, even though only temporarily, during this time. This suffices to make Mrs. Tanguay at that time a member of her mother's 'family.'

The definition in Wolf v. Sulik, supra, also requires proof that the motor vehicle is maintained 'for the general use and convenience of [the owner's] family.' On this issue, one of the criteria the court may properly consider is 'the frequency of operation of the automobile by a member of the owner's family.' McCaughey v. Smiddy, 109 Conn. 417, 420, 146 A. 822, 824. The evidence shows that during her vacation at Old Lyme and during the rest of the year, Mrs. Tanguay was the principal operator of the Buick, although, on occasion, she used it for transportation for her mother. Further, Mrs. Tanguay even kept the Buick at her home in New Britain for extended periods of time, although her mother was living in Plainville. In the light of this evidence, the court could hardly come to any conclusion other than that the Buick was maintained, primarily although not solely, for the use and convenience of Mrs. Tanguay.

The plaintiff claims that, notwithstanding the foregoing evidence that the Buick was a family car, the evidence fails to establish that Mrs. Tanguay had 'general authority' to operate it. This claim is based on the fact that Mrs. Tanguay customarily informed her mother of the contemplated use of the Buick and thereby (as the plaintiff claims) impliedly obtained 'special permission' each time she used it. The plaintiff claims that this pattern of conduct falls within the rule that such special permission negates a general authority. O'Keefe v. Fitzgerald, 106 Conn. 294, 300, 137 A. 858. ⁴ It is unnecessary, however, to consider this claim, for whatever may have been the course of conduct of the parties when they were not at Old Lyme, at Old Lyme the plaintiff plaintiff placed the Buick at the general disposal of the occupants of the cottage, ⁵ and at Old Lyme Mrs. Tanguay used the...