Rinalli v. Kurtz

• Decision Date: 27 June 1933
• Citation: Rinalli v. Kurtz, 117 Conn. 165, 166 A. 916 (Conn. 1933)
• Court: Connecticut Supreme Court
• Parties: RINALLI v. KURTZ et al.

166 A. 916

117 Conn. 165

RINALLI v. KURTZ et al.

Supreme Court of Errors of Connecticut.

June 27, 1933

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

Action by Nicolo Rinalli, administrator, against Samuel A. Kurtz and others, to recover damages for the death of plaintiff's intestate, alleged to have been caused by the negligence of the defendants.Verdict for plaintiff against defendants Kurtz and Gambardella, and in favor of defendant Bulkley, and defendant Kurtz appeals.

No error.

Samuel M. Silver, Joseph B. Morse, and Daniel D. Morgan, all of New Haven, for appellant.

Benjamin F. Goldman, of New Haven, for appellee.

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

AVERY Judge.

The plaintiff brought this action as administrator of the estate of John Rinalli, a boy twelve years of age, who, on July 17 1931, received fatal injuries from an automobile on a brake-testing machine owned by the defendantSamuel A. Kurtz.The action was brought by the plaintiff against Kurtz, Morton C. Bulkley, and Frank Gambardella.After a trial, the jury brought in a verdict in favor of the plaintiff against Kurtz and Gambardella but in favor of Bulkley.Kurtz moved to set the verdict aside, which motion was denied by the court.On this appeal, the assignment of error most strongly urged is the action of the court in refusing to set aside the verdict.

From the evidence, the jury might reasonably have found that Kurtz was the owner of real estate in New Havenat 269 Ferry street and 156 Exchange street; that on the property there was a building containing a store and office room in which were kept for sale tires and automobile accessories, and also a garage and repair shop in front of which was a brake-testing machine.All of these buildings were under one roof.There was also a separate garage for washing automobiles and seven gasoline pumps in front of the office and repair shop.In the part of the building containing the store and office room Kurtz conducted an automobile accessory business; and, at the time of the accident to plaintiff's decedent, he had in his employ, in connection with that business, Howard Bozzell and Frank Gambardella.The brake-testing machine was owned by Kurtz and was installed by him about a year and a half before the accident, and he maintained it.The defendant Bulkley operated this machine and the garage.On the day before the accident, Bulkley hired the deceased to watch the premises for a couple of hours, and he was also on the premises helping the day of the accident.During the afternoon of July 17th, Bulkley placed an Auburn automobile upon the brake-tester and, as he was leaving to go across the street, he requested Gambardella to move the automobile further onto the machine.Gambardella started up the automobile to move it, and, in so doing, he ran against the Rinalli boy and caused his death.

The vital dispute between the parties on this appeal is whether Gambardella was acting as an agent of Kurtz, and within the scope of his employment at the time of the injury to the Rinalli boy.It was the contention of the plaintiff that Bulkley was acting in a mere supervisory capacity over the brake-testing machine and garage; that Kurtz was at all times in control of the entire place; and that Bulkley was acting under him in conducting these departments.Kurtz, on the other hand, claimed that he rented the brake-tester and garage about two months before the accident to Bulkley and a partner, and that he, Kurtz, had nothing to do with the operation of these departments at the time of the accident.As hearing upon this point, there was evidence that Gambardella and Bozzell, the employees of Kurtz in the tire shop, on occasion assisted Bulkley around the brake-testing machine and in other ways in his repair work; and that Bulkley attended the gasoline pumps and helped other employees of Kurtz in work around the gas station when occasion required.On the walls of an adjacent building owned by Kurtz, and on signs over the service station were printed in large letters the words " Free brake testing."A large tank of kerosene and several automobiles belonging to Kurtz were stored in the repair garage; and brake lining for repairing brakes was stored in the store and office building where the accessories were located.There was also testimony that previous to, at about the time of, and subsequent...