Mesite v. Kirchstein

• Decision Date: 17 April 1929
• Citation: 145 A. 753,109 Conn. 77
• Court: Connecticut Supreme Court
• Parties: MESITE v. KIRCHSTEIN et al.[*]

145 A. 753

109 Conn. 77

MESITE v. KIRCHSTEIN et al.^[*]

Supreme Court of Errors of Connecticut.

April 17, 1929

Appeal from Superior Court, New Haven County; Arthur F. Ells and John Rufus Booth, Judges.

Action by Rose Mesite against John F. Kirchstein and another to recover damages for the alleged negligence of defendants. Verdict for both defendants on trial to the jury, and plaintiff appeals. No error.

Charles S. Hamilton, of New Haven, and Morris M. Wilder, of Meriden for appellant.

Cornelius J. Danaher, of Meriden, for appellee John F Kirchstein.

De Lancey S. Pelgrift, of Hartford, for appellee Teresa Mesite.

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

WHEELER, C.J.

In the consideration of the plaintiff's appeal, we must assume that the jury might reasonably have found, in essentials, the following facts, which the finding states the plaintiff offered evidence to prove: The plaintiff was riding in the rear seat of an automobile owned by her mother, the defendant Teresa Mesite, and driven by the husband of her mother with the permission of his wife for the benefit of their family. The automobile was traveling in a westerly direction along Kensington avenue which intersects Capitol avenue which runs north and south. The operator of the car in which the plaintiff was riding was proceeding at from 15 to 20 miles an hour before reaching Capitol avenue. Upon arriving at the intersection, he blew his horn, reduced the speed of his car to 5 miles an hour, looked to his left, and saw defendant Kirchstein's car approaching from the south on the left side of Capitol avenue, 35 to 40 feet away, at a fast rate of speed. The operator of plaintiff's car, upon observing Kirchstein's car, continued on into and partly across the intersection, applied his brakes, and stopped his car within the intersection, with its front wheels against an embankment on the extreme west side of Capitol avenue and with the rear extending partly across the intersection. The Kirchstein car continued to approach until its front collided with the left side of the car in which plaintiff was riding, striking it near the windshield after it had come to a standstill, when there was room for it to have passed in the rear of the car in which plaintiff was riding. The plaintiff alleged in her complaint and claimed upon the trial that the cause of the collision was the combined negligence of the operator of the car in which the plaintiff was seated and the operator of the Kirchstein car.

One of the errors assigned is the submission to the jury of plaintiff's claim as dependent upon their finding that the proximate cause of the accident in which plaintiff suffered the injury for which she seeks damages was due to the negligence of Kirchstein alone, whereas her complaint and claim on the trial was for a recovery based upon the combined negligence of the operators of the Mesite and Kirchstein cars. Plaintiff's request to charge upon this point included a finding by the jury that the injury to plaintiff occurred either from the combined negligence of the defendants, or from the negligence of either defendant. The court submitted each situation to the jury; it is true that the court's charge emphasized the negligence of either defendant as the proximate cause of the injury to plaintiff more than it did that of the combined negligence of the defendants as such cause, but the latter issue was fairly presented at the conclusion of the court's charge upon this subject, and we cannot conclude that the jury did not understand and appreciate the plaintiff's contentions and the charge upon these points.

Another error is claimed to be the failure to charge in accordance with the statutory rule of the road requiring the operator of a motor vehicle on the highway to keep on the right side. There was no occasion to so charge. Feehan v. Slater, 89 Conn. 697, 96 A. 159. The negligence of Kirchstein or of Mesite occurred after one or the other reached the intersection. The duty of either so approaching was accurately and sufficiently stated by the court and in conformity to our decisions in Neumann v. Apter, 95 Conn. 695, 701, 112 A. 350, 21 A.L.R. 970, Jackson v. Brown, 106 Conn. 143, 137 A. 725, and Hall v. Root et al. (Conn.) 145 A. 36. The plaintiff's request was deficient in failing to include the statement that the mere violation of these statutory requirements would not constitute actionable negligence unless their violation was the proximate cause of the injury; this omission the court supplied in its charge. Pietrycka v. Simolan, 98 Conn. 490, 495, 120 A. 310; Lukosevicia v. Bartow, 99 Conn. 723, 726, 122 A. 709. The duty of the plaintiff while riding as a guest in the motor vehicle of the defendant Teresa Mesite was presented in accordance with our law; plaintiff's complaint of this is without merit.

None of the claimed errors in the charge are of sufficient consequence to require consideration, except those portions of the charge which instructed the jury that upon the evidence they could not reasonably find that the plaintiff was other than an unemancipated minor child living with her parents and that for an injury suffered by a minor occupying such relationship no action would lie against a parent either at common law or under any statute of this state. In view of this instruction, the trial court directed the jury to render a verdict in favor of the defendant Teresa Mesite, the mother of the plaintiff. The plaintiff requested the court to instruct the jury that " at the time this accident happened the plaintiff was practically emancipated from her parents by earning her own living and paying her board at home, and for all practical purposes was living independent of her parents," and therefore the defendant Mesite would be liable for injuries occurring in consequence of her negligence. The same issues were assumed to be raised in the general demurrer to defendants' first defense. The plaintiff did not raise by her pleadings the issue of emancipation. The court instructed the jury, " No evidence has been offered upon that subject from which it could be fairly and reasonably found that the plaintiff was other than an unemancipated minor." The plaintiff offered evidence to prove that, at the time of the accident, the plaintiff was 16 years of age and had always resided with her parents. She left school at 15 to work in a box factory where for the nine months preceding the accident she had earned weekly $12.50, out of which she paid her parents $8 and utilized the balance for the purchase of her clothing and for spending money, while at various times her father supplemented her income. Emancipation is the grant by a father, or by the mother if she possesses under the law the rights the father had over the minor, by agreement either written or oral, or by inference from the conduct of the parent, of the right to the minor's services during his minority, as well as to the control, for most purposes, of his person. Kenure v. Brainerd & Armstrong Co., 88 Conn. 265, 267, 91 A. 185; Schouler on Domestic Relations (6th Ed.) § § 807-809.

The court was fully justified in its instruction that the plaintiff at the time of her injuries was a minor unemancipated from parental control. That a parent is not liable civilly to his child for personal injury inflicted during his minority is the rule of law which prevails in every one of the eleven States where this question has arisen. The fact that it has only arisen in eleven states is strong indication of the existence of a common judgment forbidding the allowance of such a recovery. These decisions are Hewlett v. Georgia, 68 Miss. 703, 9 So. 885, 13 L.R.A. 682; McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664, 64 L.R.A. 991, 102 Am.St.Rep. 787, 1 Ann.Cas. 130; Taubert v. Taubert, 103 Minn. 247, 114 N.W. 763; Roller v. Roller, 37 Wash. 242, 79 P. 788, 68 L.R.A. 893, 107 Am.St.Rep. 805, 3 Ann.Cas. 1; Small v. Morrison, 185 N.C. 577, 118 S.E. 12, 31 A.L.R. 1135; Smith v. Smith, 81 Ind.App. 566, 142 N.E. 128; Foley v. Foley, 61 Ill.App. 577; Ciani v. Ciani, 127 Misc. 304, 215 N.Y.S. 767; Sorrentino v. Sorrentino, 222 A.D. 835, 26...