Marshall v. Fenton

• Decision Date: 14 June 1928
• Court: Connecticut Supreme Court
• Parties: MARSHALL v. FENTON ET AL. (TWO CASES).

142 A. 403

107 Conn. 728

MARSHALL v. FENTON ET AL. (TWO CASES).

Supreme Court of Errors of Connecticut.

June 14, 1928

Appeal from Superior Court, New London County; Newell Jennings Judge.

Actions by Gene Marshall and Louis S. Marshall against Timothy Fenton and one Katz to recover damages alleged to have been caused by the negligence of the first named defendant as the agent of the defendant Katz, tried to the jury. Verdict and judgment for each plaintiff against both defendants and defendant last named appeals. Error, and new trial granted as to defendant last named.

Charles V. James and Arthur M. Brown, both of Norwich, for appellant.

Reuben Taylor, Ralph G. Woolfson, and Samuel M. Gruskin, all of Hartford, for appellees.

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

HINMAN, J.

Defendant Katz conducted a repair garage in New London, and occasionally sold secondhand automobiles. He permitted defendant Fenton, as a prospective purchaser, to take and try an automobile which he had for sale. Fenton returned it reporting that some repairs were needed. Subsequently Fenton, having learned that the repairs had been made, requested of Katz's foreman, one Wiesch, permission to take the car for the purpose of trying it again to see if it was satisfactory. Wiesch, in the absence of Katz, allowed Fenton to take the car for that purpose, and, while Fenton was driving it, a collision occurred with an automobile in which the plaintiffs were riding, injuring both. Katz claimed, on the trial, that Wiesch was not authorized by him to allow Fenton to take the car, and that there was no relationship of principal and agent, master and servant, or otherwise between him (Katz) and Fenton, rendering the former liable for the latter's negligent operation of the automobile.

In the charge the trial court quoted an extensive excerpt from the opinion in Wolf v. Sulik, 93 Conn. 431, 435 et seq., 106 A. 443, 4 A.L.R. 356, relating to the so-called " family car doctrine," the general principle on which it rests being therein stated (page 436, 106 A. 444) as " that every man who prefers to manage his affairs through others remains bound to so manage them that third persons are not injured by any breach of legal duty on the part of such others while they are engaged upon his business and within the scope of their authority."

Although recognizing and expressly stating that the family car doctrine was not involved in the present case, the court then instructed the jury that while, if Fenton simply borrowed the car for his own purposes, Katz could not be held liable for negligence, " if his specific purpose in taking the car was to try it and see whether it would answer his purpose, even though he may have used it incidentally on some errand or work of his own, then the car would be being used on Katz's business, which was, in part, selling secondhand cars. * * * Where, as is claimed in this case, if you so find the facts, the car is sent out to be demonstrated by this owner who is a dealer in cars, and whose business it is to sell cars, even though his chauffeur is not actually operating the car, and even though the chauffeur is not actually in the car, if he has given it out for that purpose, it comes within the rules which I have described to you as the fundamental principles underlying this whole situation, and the owner, under those circumstances, would be liable for the negligence of the person who had taken the car."

In O'Keefe v. Fitzgerald, 106 Conn. 294, 137 A. 858, we have recently restated and discussed such extensions of the common-law rule of respondeat superior, as applied to the use of automobiles, as have been adopted in this state. We there made clear that the " family car doctrine" is subject to the limitation that, in addition to the other specified requisites, the driver of the car must be shown to have had general authority from the owner to so drive it, as distinguished from special permission for a specific occasion. We also noted the significance of the extension of owner's liability created by the passage of section 4 of chapter 216 of the Public Acts of 1905, and of its repeal in 1921, chapter 334. In 1925 an act was passed--section 21 of chapter 195 of the Public Acts--providing that:

" Any person renting or leasing to another any motor vehicle owned by him shall be liable for any damage to any person or property caused by the operation of such motor vehicle while so rented or leased."

This cannot be regarded otherwise than an expression of legislative judgment as to the extent--beyond the limitations of the general principles of respondeat superior and the " family car doctrine" --to which the owner of a motor vehicle which he intrusts to another should be held liable for the acts of the latter. In cases in other states in which the owner of an automobile has been held liable for the negligence of a prospective purchaser in driving the car the driver was, at the time, accompanied by, and acting under the supervision and control of, an agent or employee of the owner. Doyon v. Massoline Motor Car Co., 98 N.J.Law, 540, 544, 120 A. 204; Geiss v. Twin City Taxicab Co., 120 Minn. 368...