Nemoitin v. Berger

• Decision Date: 03 March 1930
• Citation: 111 Conn. 88,149 A. 233
• Court: Connecticut Supreme Court
• Parties: NEMOITIN v. BERGER.

149 A. 233

111 Conn. 88

NEMOITIN v. BERGER.

Supreme Court of Errors of Connecticut.

March 3, 1930

Appeal from City Court of Stamford; James E. Brinckerhoff, Judge.

Action by Joshua Nemoitin against Jacob Berger to recover damages for personal injuries alleged to have been caused by the negligence of the defendant and his heedless or reckless disregard of plaintiff's rights as a guest in defendant's automobile.Judgment was entered for plaintiff on trial to the court, and defendant appeals.

Error and judgment reversed, with direction to enter judgment for defendant.

Thomas R. Robinson and Daniel L. O'Neill, both of New Haven, for appellant.

Abraham Reback and John L. Reback, both of Stamford, for appellee.

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

MALTBIE, J.

The plaintiff, an elderly man, and his wife, were invited by the defendant to ride home from a beach in the latter's automobile.The defendant opened the rear door of the car and they entered.The plaintiff's wife had seated herself upon the right side of the car.While the plaintiff was taking his place upon the seat upon the left, the defendant, who had taken his position behind the driving wheel, noticed that the rear door of the car was still open.Without looking to see the position of the plaintiffhe reached back and slammed it.Two fingers of the plaintiff were caught between the rear part of the door and the jamb of the body frame and severely injured.The trial court gave judgment for the plaintiff, and the defendant has appealed.

The complaint stated the case as one falling within the terms of our statute permitting a recovery by a guest in an automobile only when the accident causing the injury is intentional or caused by the heedless and reckless disregard of the rights of others.Public Acts of 1927, c. 308.The trial court based its decision upon the statute; and the record does not in any way indicate a claim at the trial that the statute was unconstitutional.We therefore disregard the plaintiff's claim made upon the appeal that this is so.Rindge v Holbrook,110 Conn. ___, 149 A. 231.The statute provides that no person " transported by the owner or operator of a motor vehicle as his guest" without payment shall be entitled to recover for an injury except in accordance with its terms.When the plaintiff entered the car to take his place for the purpose of immediate transportation he came within the purview of...