Maher v. Fahy

• Decision Date: 31 July 1930
• Citation: 112 Conn. 76,151 A. 318
• Court: Connecticut Supreme Court
• Parties: MAHER v. FAHY et al.

151 A. 318

112 Conn. 76

MAHER v. FAHY et al.

Supreme Court of Errors of Connecticut.

July 31, 1930

Appeal from Superior Court, New Haven County; Carl Foster, Judge.

Action by Nellie F. Maher, administratrix of the estate of Lincoln A. Maher, deceased, against George C. Fahy and others, for damages for personal injury and death of plaintiff's decedent alleged to have been caused by the negligence of the defendant. The case was tried to a jury, which returned a verdict for the plaintiff for $10,000. The court on motion set aside the verdict as to the defendants Emma Verwholt and George C. Fahy, Sr., and George C. Fahy, Jr., and entered judgment against defendant Raymond E. Verwholt, and the plaintiff appeals.

No error.

Walter J. Walsh and John J. Sullivan, Jr., both of New Haven, for appellant.

William B. Gumbart and Charles A. Watrous, both of New Haven for appellees Fahy.

David E. FitzGerald, Jr., David E. FitzGerald, and Frank E Bollmann, all of New Haven, for appellee Emma Verwholt.

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

HAINES, J.

Shortly after 12 o'clock the night of December 28, 1928, an open Packard car driven by the defendant George C. Fahy, Jr., was in collision with a closed Graham-Paige car driven by defendant Raymond E. Verwholt, on Prospect street in New Haven, and the plaintiff's decedent, Lincoln A. Maher, who was riding in the Fahy car, was thrown from the car and so badly hurt that he died soon after. This action was brought by the administratrix of his estate against the drivers of both cars as well as the owners of the cars, the defendants George C. Fahy, Sr., and Emma Verwholt. A jury gave the plaintiff a verdict against all the defendants for $10,000. Upon motion to set aside this verdict the court held that the jury could not reasonably have found from the evidence that Fahy, Jr., was guilty of conduct which constituted heedless and reckless disregard of the rights of others, and the verdict against the Fahys, father and son, was set aside. The court also held that the jury could not reasonably have found that the defendant Raymond E. Verwholt was the agent of his mother Emma Verwholt, and therefore set aside the verdict as to her. This action of the trial court is the basis of the plaintiff's appeal, and the defendants Fahy have filed a bill of exceptions, to certain portions of the charge, to the refusal of the court to submit an interrogatory, and to certain rulings on evidence. We first consider the action of the court setting aside the verdict as to the defendants Fahy.

Fahy, Sr., owned the Packard car and his son Fahy, Jr., was in possession of and driving it at the time of the injury to the plaintiff's decedent. The latter, Lincoln A. Maher, was riding in the Fahy car as a " guest" within the meaning of our statute: " No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator or caused by his heedlessness or his reckless disregard of the rights of others." Pub. Acts 1927, c. 308, § 1.

The evidence was voluminous, and much of it contradictory, and all of it could not have been true. The situation was further complicated by the fact that the claims against all defendants were prosecuted in a single action so that some of the evidence admissible against one was not admissible against another. We have read and considered the entire evidence with great care and with particular reference to the conclusion of the trial court that the conduct of Fahy, Jr was not such as to create liability to the plaintiff under the statute referred to. Intentional misconduct cannot be seriously claimed, and the single question is whether his conduct was something more than the lack of that due care of a reasonably prudent person, which is negligence. We have construed this statute to mean conduct which was in heedless and reckless disregard of the rights of others. Bordonaro v. Senk, 109 Conn. 428, 431, 147 A. 136. We do not share the doubt expressed by the trial court, as to whether he was guilty of negligence, but it was incumbent upon the plaintiff to prove more than that, for " heedless and reckless disregard of the rights of others" constitutes, in substance, wanton misconduct, consisting of a reckless disregard of the just rights or safety of others in their lives, limbs, health, reputation, or property, or of the consequences of one's action. Grant v. MacLelland, 109 Conn. 517, 520, 147 A. 138; Bordonaro v. Senk, 109 Conn. 428, 147 A. 136; Silver v. Silver, 108 Conn. 371, 143 A. 240. The plaintiff claimed the Fahy car was traveling in the middle of Prospect street, which was thirty-three feet wide. The width of the Fahy car was five feet, and taking the most favorable aspect of the plaintiff's evidence, it was therefore occupying two and one half feet of the left side of the street. This left fourteen feet for the Verwholt car to pass, nearly three times its width. ...