Smart v. Bissonette

• Decision Date: 25 July 1927
• Citation: 106 Conn. 447,138 A. 365
• Court: Connecticut Supreme Court
• Parties: SMART v. BISSONETTE ET AL.

138 A. 365

106 Conn. 447

SMART v. BISSONETTE ET AL.

Supreme Court of Errors of Connecticut.

July 25, 1927

Appeal from Superior Court, Hartford County; John R. Booth, Judge.

Action by George W. Smart, administrator, against J. M. Bissonette and another to recover damages for the death of plaintiff's intestate, alleged to have been caused by the concurring negligence of the defendants, brought to the Superior Court and tried to the jury. Verdict for plaintiff against both defendants, and defendants appeal. No error.

Richard H. Deming, of Hartford, for appellant Bissonette.

Joseph F. Berry, of Hartford, for appellant Dutton.

Henry H. Hunt, of Hartford, for appellee.

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

BANKS J.

Since the trial in the superior court the death of plaintiff George W. Smart, administrator, and that of the defendant J M. Bissonette have been suggested upon the record, and by order of that court the Hartford AEtna National Bank, administrator, has been substituted as plaintiff and Joseph Israel Lord, administrator, has been substituted as party defendant.

The complaint alleges that while the plaintiff's intestate was standing upon the sidewalk on the west side of Main Street in the town of East Hartford the motor vehicles owned by the respective defendants approached from opposite directions and by reason of the negligence of both operators collided in the street opposite the spot where plaintiff's intestate was standing, and that the motor vehicle of the defendant Dutton, as a result of such collision, struck plaintiff's intestate inflicting injuries which caused her death. The appeal is from the denial of motions of both defendants to set aside a verdict in favor of the plaintiff and for claimed errors in the charge.

It was conceded that plaintiff's intestate was in the exercise of due care as she stood upon the sidewalk in a place of apparent safety, and it was the claim of each defendant that the collision was caused by the negligence of the operator of the car of the other defendant. The paved portion of the street in front of plaintiff's intestate as she stood on the sidewalk was about 19 feet wide. Directly opposite her stood a car facing north, about half of the car being on the paved street and half on the shoulder. The Bissonette car coming from the south turned out to pass the car parked on the east side of the street and came into collision with the Dutton car, which was coming from the north, the collision occurring when the three cars were about abreast on the street. These facts were undisputed. Each defendant claimed that the other was on the wrong side of the road when the collision occurred. It is admitted that there was a conflict in the evidence upon this point, but each defendant makes the claim that the physical facts resolved the apparent conflict by showing that the testimony which created it was either unintentionally or intentionally untrue because in conflict with indisputable physical facts. Richard v. New York, N.H. & H. R. Co., 104 Conn. 229, 232, 132 A. 451. The fact that this claim is made by both defendants would seem to indicate that the physical facts may not have been entirely indisputable, which is confirmed by a careful examination of the evidence. There was no error in the denial of the motion to set aside the verdict.

The complaint alleged that the car of the defendant Bissonette was at the time of the accident being operated by one Marie Joillet, a member of his family, and that it was being operated as a family car. This allegation was denied. The finding states that the evidence offered by the plaintiff upon this issue was that Miss Joillet had been housekeeper for Father Bissonette for 16 years and lived in his household; that he had bought the car about a year before the accident for his own use; that it was not bought or kept for her pleasure, but that she had general permission to use it and had used it every day for three or four weeks before the accident; that it was known as the car for her use and that she did not have to ask permission to use it each day; that one of Father Bissonette's curates who lived in the house also had general permission to use it, and that on the day of the accident plaintiff was using it for her own pleasure. The court charged the jury that upon the uncontradicted evidence the car was being driven by a member of this defendant's family who had general authority to drive it, that it was being used at the time of the accident as a family car, and that the defendant Bissonette was responsible for its operation at that time. This portion of the charge is assigned as error in the appeal of Bissonette. No complaint is made of the action of the court in failing to submit any question of fact to the jury, but it is claimed upon the concededly undisputed facts that the defendant Bissonette was not responsible for the operation of the car by Miss Joillet as a " family car."

The so-called " family car doctrine" has been restated and its limitations defined in the recent case of O'Keefe v. Fitzgerald, 106 Conn. 294, 137 A 858. Liability under this doctrine is predicated upon the maintenance of a car by its owner for the general use and convenience of his family and...