Weller v. Fish Transport Co., Inc.

• Decision Date: 12 May 1937
• Citation: 192 A. 317,123 Conn. 49
• Court: Connecticut Supreme Court
• Parties: WELLER v. FISH TRANSPORT CO., Inc., et al.

192 A. 317

123 Conn. 49

WELLER v. FISH TRANSPORT CO., Inc., et al.

Supreme Court of Errors of Connecticut.

May 12, 1937

Appeal from Superior Court, Fairfield County; Patrick B O'Sullivan, Judge.

Action by Nellie F. Irelan Weller, executrix of the estate of Christopher F. Weller, deceased, against the Fish Transport Company, Incorporated, and another, to recover damages for the death of plaintiff's decedent, alleged to have been caused by defendants' negligence. From a verdict and judgment for plaintiff, defendants appeal.

No error.

Louis Feinmark and Philip R. Shiff, both of New Haven, for appellants.

Philip Reich and Samuel Reich, both of Bridgeport, for appellee.

Argued before MALTBIE, C.J., and HINMAN, BANKS, AVERY and BROWN, JJ.

BROWN Judge.

The plaintiff's decedent while riding in an automobile driven easterly on the Post road in Darien by his wife who, as executrix of his will, is the plaintiff herein, was killed as a result of a collision between it and the named defendant's motortruck being driven westerly by its agent, the defendant Roberts. The jury returned a verdict for the plaintiff against both defendants, who have appealed relying upon claimed errors in the court's charge to the jury, its rulings on evidence, and improper comments and arguments of counsel for the plaintiff.

Certain facts stated in the claims of proof of the parties may be regarded as undisputed. The collision occurred at 11:50 p. m on June 16, 1935, on the Post road in Darien, where the thirty-six foot wide concrete roadway, bordered by a four or five foot wide oiled shoulder on the south, and a concrete gutter of similar width on the north, and bisected by a single trolley track through the center, extends east and west. The weather was clear and the pavement dry. There was no street light in the immediate vicinity. The Wellers were riding side by side in a Buick sedan, registered in the name of and owned and driven by Mrs. Weller. Until shortly before the collision the sedan was proceeding easterly to the south of the car track, and the truck was proceeding westerly near the north edge of the concrete roadway. Somewhere in the roadway the right front of the sedan came into collision with great violence with the right front wheel, fender, and body corner of the truck. The decedent was almost instantly killed by the collision.

The plaintiff's version of the accident as disclosed by the claims of proof was that fifty feet east of the point of impact, the truck turned left to cross the trolley track toward the south side of the road, whereupon just before her car was struck Mrs. Weller turned it to her left side to avoid a collision, but was unable to accomplish her object, and the vehicles collided south of the more southerly trolley rail. The defendants' version was that the sedan, as it proceeded easterly in a line of heavy traffic, suddenly turned out to the left from behind the car immediately preceding it, and headed toward the north side of the road at about a forty-five degree angle; that the sedan was then a considerable distance from the truck, and Roberts, perceiving it, gradually applied his brakes and slackened the truck's speed, not knowing which direction the Weller car would take; but upon seeing that it had crossed the trolley track to the north side of the road and was continuing straight toward the truck, thus confronting him with a sudden emergency, he applied his brakes with full force and swerved the truck to his left in an effort to avoid a head-on collision, but without success, as the sedan continued on its course without change of direction; and that the impact occurred at a semicircular gouge mark on the north side of the highway and north of the trolley track. Further conflicting claims are recited below.

Paragraph 6 of the complaint, after reciting several grounds of alleged negligence, concludes with an allegation of the last clear chance doctrine. Neither party claimed that the doctrine was applicable and upon the undisputed facts and claims of proof of the parties it was not. The defendants claim error in the failure of the trial court to so charge. The court reviewed the various allegations of negligence in the complaint and instructed the jury that it was not necessary that the plaintiff prove all of them, but it was sufficient if she proved any one. In view of the nature of the allegation as to the last clear chance and the specific charge as to the grounds of negligence given, it is not reasonable to believe that the jury could have applied the doctrine in the decision of the case, and a specific charge that they were not to do so was unnecessary.

The defendants assign error in a certain portion of the charge, in which the trial court, in effect, instructed the jury that a recovery by the plaintiff would not be defeated even if they should conclude that Mrs. Weller was negligent; the claim being that the court should have charged the jury as to the imputation of her negligence to the decedent upon the basis of their being engaged in a joint enterprise. The defendants claimed to have proved that Mrs. Weller maintained the car as a family car and that it was used jointly by her and her husband for their mutual pleasure and business; that they had both consumed alcoholic drinks while visiting their friends named Jessup that evening before the accident; that upon leaving the Jessup home Mrs. Weller drove because she left her husband had consumed so much liquor that he ought not to drive; that just before the collision in response to his suggestion she turned out to pass the car next ahead; and that at no time did he make any protest as to the manner in which she drove. As plaintiff, Mrs. Weller claimed to have proved that she had partaken of no alcoholic beverages.

Since this was a death case, as the court correctly charged the jury, under General Statutes, Cum.Sup. 1935, § 1654c, the burden of proving the decedent's contributory negligence was upon the defendants. Their right to a charge upon imputed negligence of Mrs. Weller as constituting contributory negligence of the decedent depends upon whether their claims of proof disclose the elements essential to a joint enterprise. These include at least a common purpose, a community of interest in the object of the enterprise, joint possession of the vehicle, and equal right and authority to control its operation. Coleman v. Bent, 100 Conn. 527, 530, 124 A. 224; Bushnell v. Bushnell, 103 Conn. 583, 587, 131 A. 432, 44 A.L.R. 785; 8 L.R.A. (N.S.) 628, note; 5 Am.Jur., Automobiles, §§ 500, 501. See, also, American Law Institute, Restatement, Torts, vol. 2, § 491c. In accord with this principle, a husband and wife riding in a car owned and driven by one of them even while engaged in carrying out a common purpose, in the absence of a right in both to control, direct, and govern its operation, are not engaged in a joint enterprise in so far as the running of the automobile is concerned. 5-6 Huddy, Automobile Law (9th Ed.) p. 300, § 154; Fuller v. Mills, 36 Ga.App. 357, 136 S.E. 807. The defendants did not claim to have proved the essential element of fact that Mr. and Mrs. Weller had equal right and authority to control the operation of the car, and none of the facts they did claim to have proved establish that as matter of law. In the absence of any such claim of proof, the trial court was correct in disregarding the doctrine of joint enterprise, as it did in the portion of the charge of which complaint is made.

The appellants' further claim, that the charge was confusing because contradictory upon the issue of imputed negligence goes beyond their assignment of errors. Nevertheless we state our conclusion that the charge could not have been prejudicial to them in this respect. After earlier charging that if the jury found the essentials as defined existed, Mrs. Weller's negligence would be imputed to the decedent, and if a substantial factor in causing the collision, would bar recovery, later the court twice stated her negligence would be immaterial if the jury found that of Roberts a substantial factor in causing the decedent's death, and continued: " And just so long as you *** determine *** that his [Roberts'] negligence was a substantial factor in causing Mr. Weller's death and that Mr. Weller was himself free from contributory negligence in accordance with the law as I have given it to you, then the plaintiff is entitled to a verdict no matter how negligent Mrs. Weller may have been, if she was at all." Since prior to its reference to imputed negligence the court had charged fully upon the duty of the decedent as passenger, and contributory negligence by him per se, the words quoted failed to make clear whether the court was referring to what it had charged as to the decedent's contributory negligence...