Skut v. Boardman
| Decision Date | 15 May 1951 |
| Citation | 137 Conn. 675,81 A.2d 110 |
| Court | Connecticut Supreme Court |
| Parties | SKUT v. BOARDMAN et al. In re SKUT'S ESTATE. Supreme Court of Errors of Connecticut |
Charles V. James, Norwich, J. Ronald Regnier, Hartford, for appellants Boardman.
Morris H. Broder, Colchester, for appellee.
Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and ALCORN *, JJ.
Although the assignments of error on this appeal are addressed both to the denial of the motion to set aside the verdict and to the charge, there is only one question of law involved. That is the question whether a plaintiff suing to recover damages for negligence in the operation of a motor vehicle waives the benefit of the presumption of agency created in his favor by § 7905 of the General Statutes, by introducing evidence of the fact of agency on his case in chief.
On the trial of the case the plaintiff introduced evidence to prove the following facts: On the night of December 8, 1945, Joseph Skut, the plaintiff's decedent, while riding as a passenger in an automobile in Colchester was killed as the result of the negligence of the driver of the car, the defendant Emil Pugatch. The car was owned by the defendant Jennie Boardman. It was commonly used as a taxi for hire in the taxi business conducted by her and her husband the defendant, Samuel Boardman, of which business he was the manager. During the summer, fall and winter seasons of 1945 to and including December 8, Pugatch was employed by Samuel to operate the taxi. During that time Pugatch solicited passengers to be carried for hire in the car and regularly drove it as a taxi in Colchester, Moodus and other places. He received as compensation for his services 40 per cent of the fares collected, accounting for his collections ordinarily to Samuel Boardman but on at least one occasion to Jennie. On the night in question, Joseph Skut engaged Pugatch to drive him from the center of Colchester to his home north of the center and paid Pugatch $1 for the trip. It was on this trip that the car got out of Pugatch's control and Skut was killed. The defendants offered evidence to prove that Samuel Boardman did not employ Pugatch to operate the car as a taxi and was not authorized by Jennie Boardman to employ drivers to operate the car as a taxi for hire.
In that part of the charge dealing with the question of the agency of Pugatch in the operation of the taxi, the court read to the jury § 7905 of the General Statutes, which is printed in the footnote. 1 After making it plain that the statute did not assist the plaintiff in establishing that Pugatch was the agent of Samuel, because the car was not owned by him, the court fully and accurately explained the nature of the presumption created so far as it related to the question of Pugatch's agency for Jennie. The defendants Boardman do not complain of the interpretation of the statute given by the court in the charge. As stated above, the real claim is that, by introducing evidence in his case in chief to prove the agency, the plaintiff had waived the benefit of the statute and that, therefore, the court should have either refrained from mentioning the statute or charged the jury that it had no bearing on this case.
We have repeatedly held that the presumption created by the statute in question is of the class of presumptions created by law for the reason that the knowledge of the actual facts of the matter presumed rests peculiarly with the party against whom the presumption is raised. The statute creates the presumption that the operator of a car is the agent of the owner and places the burden of rebutting the presumption on the owner. That burden is restricted to rebutting the presumption, but it is not met merely by introducing countervailing testimony. It is only met when the trier finds proven facts which fairly put in issue the question of agency. When such facts have been proven, the burden of proving that the motor vehicle was operated by an agent of the defendant rests upon the plaintiff. Amento v. Mortensen, 130 Conn. 682, 684, 37 A.2d 231; Koops v. Gregg, 130 Conn. 185, 187, 32 A.2d 653; Lockwood v. Helfant, 126 Conn. 584, 587, 13 A.2d 136; Leitzes v. F. L. Caulkins Auto Co., 123 Conn. 459, 462, 196 A. 145; see O'Dea v. Amodeo, 118 Conn. 58, 63, 170 A. 486.
A plaintiff by alleging the fact of agency in his complaint does not waive the statute and assume the burden of proof thereon. ...
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...adversary that the trier of facts will conclude that the actual circumstances of the loss have not been established. Skut v. Boardman, 137 Conn. 675, 679, 81 A.2d 110. We find no error in the court's charge on the first count that the presumption of negligence remains until the jury finds t......
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