Rindge v. Holbrook

• Decision Date: 03 March 1930
• Citation: 111 Conn. 72,149 A. 231
• Court: Connecticut Supreme Court
• Parties: RINDGE v. HOLBROOK.

149 A. 231

111 Conn. 72

RINDGE v. HOLBROOK.

Supreme Court of Errors of Connecticut.

March 3, 1930

Appeal from Superior Court, New Haven County; John Richards Booth Judge.

Action by Ida W. Rindge against Anna L. Holbrook to recover damages for personal injuries alleged to have been caused by the defendant's heedless and reckless disregard of the rights of others. The case was tried to the jury and a verdict for plaintiff was set aside by the trial court on defendant's motion, and from this decision plaintiff appeals.

No error.

George E. Beers, Robert H. Alcorn, and William F Alcorn, all of New Haven, for appellant.

James W. Carpenter, of Hartford, for appellee.

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

MALTBIE, J.

The plaintiff was riding as the guest of the defendant in an automobile which the latter was driving along a highway in the town of Killingworth. The plaintiff suffered severe injuries by reason of the automobile running off the paved portion of the road and striking the fence at the side of it. The automobile was going at a high speed, but one which, in view of the nature of the highway, absence of traffic, and other surrounding circumstances, could not reasonably be deemed excessive. The plaintiff was sitting on the front seat beside the defendant. She discovered a bee upon her knee, and called the defendant's attention to it. The latter glanced at it, took her right hand off the steering wheel and reached for it. The plaintiff testified that the defendant placed her hand upon her knee, and that she (the plaintiff) then turned to open the window beside her and, when she had made about three turns of the lever operating it, the collision with the fence occurred. The defendant testified that she reached for the bee, but, without actually touching it, put her hand back upon the steering wheel, when the bee alighted upon her wrist, she made a movement with her hand, and thereupon the collision occurred. This testimony is not in any material way in conflict with that of the plaintiff, because the incident detailed may well have occurred while the plaintiff was turned toward the window to open it. The marks of the wheels of the car indicated that, from the time it first turned from a straight course until it struck the fence, it proceeded about seventy-five feet. The whole evidence shows beyond doubt that the accident was due to the fact that the attention of the defendant was momentarily distracted from the operation of the car because of a not unnatural reaction to the presence of the bee near or on her person. The trial court was right in concluding that the situation could not reasonably be held to disclose a reckless and heedless disregard by the defendant of the rights of the plaintiff, within the terms of our statute restricting the right of recovery by a guest in an automobile. Public Acts of 1927, c. 308; Silver v. Silver, 108 Conn. 371, 143 A. 240; Bordonaro v. Senk, 109 Conn. 428, 147 A. 136; Ascher v. Friedman, Inc., 110 Conn. 1, 147 A. 263.

The complaint of the plaintiff was based upon, and clearly sought a recovery solely by virtue of the statute just referred to. It does not appear that any claim was made that this statute was unconstitutional at the trial, and in fact the appellant does not claim before us that such a contention was there made. In her original appeal, she did claim the statute to be unconstitutional under the provisions of the Fourteenth Amendment of the United States Constitution, evidently to try to take advantage of the claim made before us in the Silver Case, which was then pending in the United States Supreme Court, 280 U.S. 117, 50 S.Ct. 57, 74 L. Ed.221, should that court reverse our decision. After our opinion in State v. McCook, 109 Conn. 621, 147 A. 126, was handed down, the appellant amended her reasons of appeal so as to claim the statute unconstitutional under the principles therein announced, and she now presses upon us the consideration of this question.

This court is a court established to review the decisions of lower courts to determine whether or not they have committed any errors in law in determining particular controversies before them. Styles v. Tyler, 64 Conn. 432, 30 A. 165; Nolan v. New York, N.H. & H. R. Co., 70 Conn. 159, 39 A. 115, 43 L.R.A. 305; Dexter Yarn Co. v. American Fabrics Co., 102 Conn. 529, 129 A. 527. The scope of the appeal allowed to it is defined and limited by the terms of our statute. Etchells v. Wainwright, 76 Conn. 534, 538, 57 A. 121; State v. Caplan, 85 Conn. 618, 621, 84 A. 280. We are not " bound to consider" claims of error which do not appear upon the record to have been distinctly raised at the trial, General Statutes, § 5837; Public Acts of 1929, c. 301, § 12; nor do we ordinarily do so. It is true we have on occasion considered a matter which was not so raised, as, for instance, where it was of public moment, Donovan v. Davis, 85 Conn. 394, 399, 82 A. 1025; or where it went to the jurisdiction of the lower court, Wentz' Appeal, 76 Conn. 405, 411, 56 A. 625; or where a controlling statute was overlooked by court and counsel at the trial, Cunningham v. Cunningham, 72 Conn. 157, 44 A. 41; Schmidt v. Manchester, 92 Conn. 551, 555, 103 A. 654. But, where we do this, it is not because the appellant has a right to have the question determined, but because, in the interest of public welfare or of justice between individuals, we are of the opinion it ought to be done.

When the Legislature enacts a statute, it becomes a part of the law of the land and is entitled to be so regarded until its unconstitutionality...