Silverman v. Silverman

• Decision Date: 06 November 1958
• Court: Connecticut Supreme Court
• Parties: May SILVERMAN et al. v. Irving SILVERMAN et al. Supreme Court of Errors of Connecticut

Page 826

145 A.2d 826

145 Conn. 663

May SILVERMAN et al. v. Irving SILVERMAN et al.

Supreme Court of Errors of Connecticut.

Nov. 6, 1958.

William R. Moller, Hartford, with whom were J. Ronald Regnier, Hartford, and, on the brief, George E. Merwin, Hartford, for appellant (defendant Abraham Silverman).

Morris H. Broder, Colchester, for appellee (named plaintiff).

Before DALY, C. J., and BALDWIN, KING, MURPHY and MELLITZ, JJ.

MURPHY, Associate Justice.

The plaintiff May Silverman is the wife of the defendant Abraham Silverman. While a passenger in her husband's automobile, she sustained injuries as a result of the negligent operation of the car by the couple's unemancipated minor son Irving. From a judgment in her favor against her husband, he has appealed. The principal question involved is whether the wife and mother has a cause of action against the husband and father under the family car doctrine for the tort of the unemancipated child even though she is precluded from recovering from the child. No reported cases upon this point have been cited by counsel, nor have we found any.

The essential facts may be summarized as follows: On September 29, 1952, May and Abraham Silverman were the joint owners of a farm in Salem. Their eighteen-year-old son Irving assisted in the operation of it without salary but was supported by the parents. The father owned a passenger automobile which Irving had general authority to operate. It was maintained and used as a family car for the convenience and pleasure of the family. The mother did not drive an automobile or have an operator's license. On the day in question, Irving was driving his mother and his brother Richard to Norwich to visit the father, who was a patient in a hospital. The mother was carrying food which the father had requested. On the way, the car was involved in a collision with a truck operated by Albert Rogers. The mother and Richard were injured. They brought suit to recover for their injuries from Irving, Abraham, and Rogers. The mother withdrew her suit against the son, Irving. Judgment was rendered for her to recover $7,296 from Abraham, her husband, and for Richard to recover from both Irving and Abraham. Judgment was also entered for the defendant Rogers. While the appeal is from the entire judgment, only so much of it as pertains to the liability of Abraham and some rulings on evidence is covered by the assignments of error that have not been abandoned.

The enactment of the Married Women's Act in 1877 (Public Acts 1877, c. 114; now General Statutes, c. 366, pt. 1) has been construed as giving a wife a cause of action in tort against her husband. Brown v. Brown, 88 Conn. 42, 47, 89 A. 889, 52 L.R.A.,N.S., 185. Had the husband in this case or his authorized agent been operating the automobile at the time of the collision, the wife could have sued either one or both for her injuries and, if the operator was negligent, could recover. A parent, however, cannot maintain an action against his or her unemancipated minor child for personal injuries caused by the negligence of the latter, because such an action is violative of public policy. Shaker v. Shaker, 129 Conn. 518, 524, 29 A.2d 765. We must decide whether it is likewise against public policy to allow recovery from the husband because of the delict of his son, who was his agent but is himself immune to suit.

The liability of Abraham, if any, arises under the so-called family car doctrine which was enunciated in 1919 in Wolf v. Sulik, 93 Conn. 431, 106 A. 443, 4 A.L.R. 356, though the case was decided upon the proper construction of § 1572 of the 1918 Revision. We there held that the husband operator was the bailee of the owner wife and that the phrase 'in the performance of such owner's business' in that statute included vehicles driven for pleasure as well as for profit. Wolf v. Sulik, supra, 93 Conn. 435, 106 A. 444. The statute which imposed liability in that case was repealed in 1921. Public Acts 1921, c. 334. In 1923, however, in the absence of any such statute, the family car doctrine became a rule of liability in this state by our pronouncement in Stickney v. Epstein, 100 Conn. 170, 179, 123 A. 1; see O'Keefe v. Fitzgerald, 106 Conn. 294, 298, 137 A. 858. Under the rule, which is substantive, not procedural as claimed in the court below, the head of the family who maintains a motor vehicle for the general use and convenience of his family is liable for the negligence of a member of the family having general authority to drive it, if it is being used as a family car. The application of the rule was broadened in Haugh v. Kirsch, 105 Conn. 429, 431, 135 A. 568, to include the owners of all family cars, not just heads of families. The rule was implemented in 1931 by the adoption of what is now § 7904 of the General Statutes (Cum.Sup.1935, § 1658c), which creates a rebuttable presumption that a car is being operated as a family car in cases where the owner bears a designated relationship to the operator.

That the Silverman car was a family car and that Irving had general authority to use it are not questioned. Attacks upon the court's conclusion that Irving was negligent and that such negligence was a proximate cause of the mother's injuries have been withdrawn. The father is therefore liable to the mother unless recovery is denied upon the ground of the public policy which prevents a parent from recovering from his or her unemancipated child for personal injuries caused by the latter's negligence. Shaker v. Shaker, 129 Conn. 518, 524, 29 A.2d 765. The reasoning and conclusions in Chase v. New Haven Waste Material Corporation, 111 Conn. 377, 150 A. 107, 68 A.L.R. 1497, are pertinent to the disposition of the question before us. In that case a young child was allowed recovery...