Middletown Trust Co. v. Bregman

• Decision Date: 16 July 1934
• Court: Connecticut Supreme Court
• Parties: MIDDLETOWN TRUST CO. v. BREGMAN et al. RUFFINO v. SAME.

174 A. 67

118 Conn. 651

MIDDLETOWN TRUST CO. v. BREGMAN et al.

RUFFINO v. SAME.

Supreme Court of Errors of Connecticut.

July 16, 1934

Appeal from Superior Court, Middlesex County; Ernest A. Inglis Judge.

Actions by the Middletown Trust Company, administrator of the estate of Antonio Scirpo, and by Salvatore Ruffino, to recover damages for the death of plaintiff's decedent in one case and for personal injuries in the other, alleged to have been caused by the negligence of the defendants, Simon Bregman and another. Judgment for the plaintiffs against both defendants and appeal by the defendant Metzger.

Error and new trial ordered.

Samuel H. Ritt, of Hartford, for appellant.

Israel Poliner and Leonard O. Ryan, both of Middletown, for appellees.

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

BANKS Judge.

An automobile operated by the named defendant, and owned by the defendant Metzger, struck and killed the plaintiff's decedent, Antonio Scirpo, and seriously injured the plaintiff Ruffino. The two actions were tried together, and the defendant Metzger appeals from the judgment against him in each case.

In the Middletown Trust Company case the complaint alleged that the automobile owned by Metzger was a family car and was being operated by Bregman with general authority to drive it. The trial court found that the plaintiff had failed to establish that the car was a family car with general authority in Bregman to operate it, but did find that at the time of the accident it was being operated by Bregman as the agent of Metzger within the scope of his agency, and the sole question presented is whether the facts found justify this conclusion.

Upon this issue the court found the following facts: The car involved in the accident was owned by, and registered in New York in the name of, Metzger, who is a brother-in-law of Bregman who was operating it. Both defendants were residents of New York City. The car was headed in a direction away from New York and contained four or five passengers whose names were not disclosed in the evidence. It did not appear in evidence that Metzger was licensed to operate a motor vehicle, or that he was not one of the passengers in the car, or that none of the passengers were members of his immediate family. Neither of the defendants testified upon the trial, no reason was given for their failure to do so, and no explanation was given as to how the car came to be in the possession of Bregman or for what purpose he had it in his possession. It will be noted that, aside from the immaterial facts that the defendants were brothers-in-law and residents of New York City and that there were four or five passengers in the car which was headed in a direction away from New York City, the only finding of a fact based on the evidence is that the car was owned by Metzger. The other findings are as to the failure of the defendants to testify or to offer evidence as to material facts within their knowledge.

Conceding that, in an action against the owner of a motor vehicle for damages caused by its operation by another, the burden is upon the plaintiff to prove that it was being operated by the agent of the owner acting within the scope of his employment, the plaintiffs contend that the court is warranted in inferring both the agency and the fact that the agent is acting within the scope of his employment from the ownership by one man and its operation by another, coupled with silence on the part of the defendant as to the material facts peculiarly within his knowledge. Courts in a considerable number of jurisdictions have held that from the fact of ownership alone it may be inferred that the operator of the car is the agent of the owner, and further that he is acting within the scope of his employment. It is said in some of the cases that there arises a presumption based on common experience that a motor vehicle figuring in an accident will be driven by the owner or by some one for whose negligence he will be responsible, and if the fact is otherwise it is but fair that the owner should be compelled to show it affirmatively as a fact of which he alone would ordinarily have knowledge. 42 A.L.R. 903. 5 Wigmore on Evidence (2d Ed.) § 2510a. In others proof that the car was being operated by an employee of the owner is held to be a sufficient basis for an inference that it was being operated upon the business of the owner. On the other hand it has been held that mere proof of ownership does not justify an inference of agency, and that proof that the car was operated by an agent does not justify an inference that it was being operated within the scope of the employment. The numerous cases, pro and con, are collected and classified in comprehensive annotations in 42 A.L.R. 898 and 74 A.L.R. 951. No good purpose would be served by a discussion of the cases, which are in hopeless conflict.

Whatever may be the rulings elsewhere, we have held that the fact that the defendant was the owner of the car and that its operator was in his general employ was not enough to show prima facie that the operator was engaged in the defendant's business at the time of the accident. In Lane v. Ajax Rubber Co., 99 Conn. 16, 120 A. 724, the driver of the car involved in the accident, called as a witness by the plaintiff, testified that he was driving a car of the defendant which he was accustomed to use in the course of his employment, but that at the time of the accident he was engaged upon his own matters, unconnected with his employment. The trial court set aside the verdict in favor of the plaintiffs, and upon appeal it was claimed that the jury was not bound to believe the evidence of the driver of the car. We said (page 17 of 99 Conn., 120 A. 724): " Assuming that the jury did disbelieve the witness in this particular, they had no evidence whatsoever before them from which they could find that the witness was in fact engaged upon the defendant's business at the time of the accident. No presumption arises of this fact out of the mere proof that the car was owned by the defendant, and at other times used by the witness in the business of the defendant." And in Matulis v. Gans, 107 Conn. 562, 565, 141 A. 870, 871, we said: " The burden of proof of agency was on the plaintiff, and it would have availed him nothing to show that Gans was the actual owner of the car without also showing that at the time of the accident [the driver of the car] was acting within the scope of an authority conferred by Gans." Where, as here, there is no proof that the driver of the car was ever in the employ of its owner there is of course still less basis for an inference from the mere proof of...