Rappaport v. Rosen Film Delivery System, Inc.

• Decision Date: 07 February 1941
• Court: Connecticut Supreme Court
• Parties: RAPPAPORT v. ROSEN FILM DELIVERY SYSTEM, Inc.

18 A.2d 362

127 Conn. 524

RAPPAPORT v. ROSEN FILM DELIVERY SYSTEM, Inc.

Supreme Court of Errors of Connecticut.

February 7, 1941

Appeal from Superior Court, New Haven County; Edward J. Daly, Judge.

Action by Morton Rappaport against the Rosen Film Delivery System Inc., and another to recover damages for personal injuries alleged to have been caused plaintiff by an assault on plaintiff by the named defendant's agent, brought to the superior court in New Haven county and tried to the jury. There was a judgment of nonsuit, and from the denial of plaintiff's motion to set aside the judgment as to the named defendant, plaintiff appeals.

Error and cause remanded with direction.

In parking lot operator's action against a corporation and its truck driver for assault committed upon operator by driver during dispute concerning parking of truck in front of driveway to parking lot, whether driver was acting within " scope of employment" at time of assault was for jury under evidence that driver was operating truck in corporation's business at time of assault.

Max H. Schwartz and Alexander Winnick, both of New Haven, for appellant.

John J. Sullivan, Jr., of New Haven, for appellee.

Argued before MALTBIE, C.J., and AVERY, BROWN, JENNINGS, and ELLS JJ.

AVERY Judge.

The plaintiff brought this action against the Rosen Film Delivery System, Inc., a corporation which operated a delivery truck in its business, and against John Nutile, the driver claiming damages for an assault committed by the driver. The case was tried to the jury, and at the close of the plaintiff's evidence the court directed a nonsuit as against both defendants. Subsequently on motion, the court set aside the nonsuit as to Nutile, the driver, but refused to set it aside as to the named defendant, and the plaintiff has appealed. The only question involved is whether the trial court was in error in refusing to set aside the nonsuit as to the named defendant. There was evidence before the jury to the following effect: On October 21, 1938, the plaintiff conducted a parking lot on College Street, between Chapel and George Streets, in New Haven which was located next to a building where employees of the named defendant were accustomed to make deliveries by truck. At about 6:30 p. m. on that day, the defendant, John Nutile, parked a delivery truck he was operating for the named defendant parallel to the curb line in front of the driveway leading into the plaintiff's lot in such manner as to obstruct the driveway for approximately ten feet and create difficulty for customers seeking to enter or leave the parking space. At that time, Nutile was making delivery of films for the named defendant and was operating the truck for that purpose. The plaintiff, as well as two of his employees, requested Nutile to park the truck out of the driveway entrance so that automobiles could get in and out of the lot. At first, Nutile refused to do so but left the truck and went into a neighboring building, apparently to make a delivery. Upon his return, the plaintiff having threatened to call a police officer, Nutile backed the truck away from the driveway. The plaintiff thereupon walked up to the cab of the truck to discuss with the driver some method by which the truck could be parked on future occasions without obstructing the driveway and stepped upon the running board, whereupon Nutile...