Shea v. Hemming

• Decision Date: 23 December 1921
• Citation: 115 A. 686,97 Conn. 149
• Court: Connecticut Supreme Court
• Parties: SHEA v. HEMMING et ux.

115 A. 686

97 Conn. 149

SHEA v. HEMMING et ux.

Supreme Court of Errors of Connecticut.

December 23, 1921

Appeal from Superior Court, New Haven County; Lucien F. Burpee Judge.

Action by Minnie Shea, administratrix, against Gustave F. Hemming and wife. Judgment for plaintiff against defendant husband and he appeals. No error.

Charles S. Hamilton and Samuel E. Hoyt, both of New Haven, for appellant.

Walter J. Walsh, of New Haven, for appellee.

BEACH J.

On the night of October 18, 1919, about eleven o'clock, the plaintiff's decedent, a police officer of the city of New Haven, then on duty, was standing in front of a motorcar owned by one Sheehy, which was drawn up close to the curb on its right hand side of Kimberly avenue, in New Haven. While it was standing there with its brakes set, a motorcar belonging to the defendant Theresa S. Hemming, which was being driven from West Haven toward New Haven by one Wells ran into the rear of the Sheehy car with such force that it was driven forward about 60 feet from its former position. The plaintiff's decedent was knocked down and run over by the Sheehy car, and was found fatally injured under the wheels of the Hemming car. The jury having found the verdict for the plaintiff, the defendant appeals from the denial of a motion in arrest of judgment, from the denial of a motion for a new trial on the ground that the verdict was against the evidence, and for alleged errors in the charge and in the admission of evidence.

The motion in arrest of judgment is for want of any allegation that the Hemming car was operated by an agent of the defendants at the time of the accident. The allegation in the complaint is that the car was " operated by the defendants and by the defendants' agent." Evidently the allegation of operating by an agent is not wholly lacking. The most that might be said is that the fact was defectively alleged, and it is therefore too late after the verdict to raise an objection on that ground. 1 Swift Dig. 776; State v. Keena, 63 Conn. 329, 332, 28 A. 522. Whether the total lack of any allegation that the car was operated by an agent of the defendants would not be cured by a failure to object to the evidence of that fact is a question which we need not decide.

The motion for a new trial on the ground that the verdict was against the evidence involves three questions: Whether there was evidence from which the jury might reasonably have found (a) that Wells was operating the car as agent or servant of the defendant Gustave Hemming; (b) that the proximate cause of the collision was the negligence of Wells in one of the respects alleged; (c) that the plaintiff's decedent was free from contributory negligence.

The evidential facts bearing on the operation of the car by Wells were not in dispute. The car belonged to the defendant Theresa S. Hemming in whose favor a directed verdict was returned. She had loaned the car to her husband, the defendant Gustave Hemming, for the afternoon. He was not an expert driver, and at his request Wells drove the car for him. The particular business for which the defendant borrowed the car had been completed, and the occupants had alighted at a bowling alley in George street. Wells, who lived in West Haven, asked the defendant whether he might take his wife and children home in the car, and the defendant gave him permission to do so, provided he, Wells, would come back to George street and take the defendant home. Then the defendant changed his mind and went to West Haven with Wells. As to this change of plan Wells testified:

" I suggested that they might as well all come along and then I won't have to come back to George street; I can take him straight home."

Wells had driven the car to West Haven and left his wife and children there; and it was on the way back, while Wells was taking the defendant home, that the accident occurred. We think the jury might reasonably have found that at the time of the accident Wells was driving the car as the agent or servant of the defendant. No contract of hiring need be proved. It is enough that at the defendant's request Wells undertook to drive the car for him. At the time of the accident the personal interest which Wells had in driving the car to West Haven had been accomplished. He was driving the defendant home, and the question whether he was then on the defendant's business, and acting within the scope of his authority, was properly left to the jury. Schrayer v. Bishop, 92 Conn. 677, 104 A. 349; McKiernan v. Lehmaier, 85 Conn. 111, 81 A. 969.

As to Wells' negligence, one allegation of the complaint is that the driver of the car was operating the same at a high and dangerous rate of speed without keeping a reasonable lookout for vehicles lawfully upon the highway. On that issue Wells testified that he was driving the car in the neighborhood of 20 miles an hour, and that he did not see the Sheehy car until the crash came. He gives two reasons for not seeing it: First, that he was dazed or blinded by the headlights of two automobiles which passed him practically at the moment of the collision. On the other hand, two eyewitnesses of the accident whose attention was drawn to the Hemming car as it...