Stickney v. Epstein , 100 Conn. 170 ( 1923 )

The appeal in this action is based solely on the alleged errors in the charge of the court. The first claim is that the court erred in failing to adequately charge the jury in respect to contributory negligence. We have repeatedly held that an assignment of error in this form is not sufficient. The assignment should state in what respect the charge as to contributory negligence was inadequate.

The second assignment of error is that the court erred in failing to define contributory negligence. As the situation presented by the facts which the parties offered evidence to prove obviously involved the question of contributory negligence, the defendant was entitled to have the subject of contributory negligence dealt with in the charge. It is not essential that the jury should be given a definition of contributory negligence in so many words, provided the instructions touching negligence, proximate cause, and the standard or degree of care required of the plaintiff, fully serve the purpose of such a definition. Huber v. Douglas, Inc.,94 Conn. 167, 108 A. 727. The court defined negligence as the failure to use "that degree of care which an ordinary, reasonable and prudent person would have exercised under the same circumstances"; and further instructed the jury that if the plaintiff was guilty of any negligence which contributed directly to his injury, he could not recover. The court by "any negligence" referred to the negligence already defined. So that the charge did define contributory negligence and accurately except in a single particular. When the court said that if the plaintiff was guilty of any negligence which contributed directly to his injury he could not recover, the charge was too favorable to the defendant. Our rule is, not that any negligence which contributes directly to the injury will bar a recovery, but that any negligence which materially and essentially as well as directly contributes to the injury. Andrews v. Dougherty, 96 Conn. 40, 46, 112 A. 700; Longstean v. McCaffrey's Sons, 95 Conn. 486, 495, 111 A. 788. The first and second assignments of error are not sustained.

The remaining assignments of error are to the effect that the charge of the court did not correctly state the common law of this State when it charged the jury to this effect: that if they found that one of the purposes of the defendant in buying and keeping the automobile, which was driven on the occasion of this injury by his wife, was to give pleasure to members of his family by permitting them to use the car for their own pleasure, then his wife, while using the car for her own pleasure on this occasion in accord with such purpose of the defendant, was using the car in the performance of the defendant's business within the scope of her authority, and was his agent; and if they found that the plaintiff's injury was caused by the negligence of the wife so acting, and the plaintiff was free from any contributory negligence, their verdict should be for the plaintiff. In the case of Wolf v. Sulik, 93 Conn. 431,106 A. 443, which dealt with the proper construction of § 1572 of the General Statutes¹ — a section which was repealed before the injury involved in this action occurred, by Chapter 334 of the Public Acts of 1921 — we discussed somewhat the common-law rules in situations similar to that which the plaintiff claims to have proved in the instant case. In the case cited the jury could reasonably have found that a wife owned an automobile, which she had given her husband, a licensed operator, general authority to take at his pleasure whenever he wanted to go anywhere, without obtaining special permission to do so; and that he had been in the habit of doing so, and was so doing when the injury involved in that case occurred and which might have been found to have been caused by his negligent driving of his wife's car. In holding that such facts would bring the case within the statute, we took occasion to speak generally of the responsibility of owners of pleasure cars maintained for the pleasure and convenience of the owner's family. We quote from Wolf v. Sulik, pp. 435, 436, 437, as follows: "This question of the responsibility of owners of pleasure cars maintained for the use and convenience of members of the owner's family, has been the subject of considerable litigation in recent years. The cases on the subject are collected and reviewed in the note to Birch v. Abercrombie, 50 L.R.A. (N.S.) 59 (74 Wash. 486,133 P. 1020), and in the note to McNeal v. McKain, 41 L.R.A. (N.S.) 775 (33 Okla. 449, 126 P. 742). We need not refer to them in detail, because our decision must be controlled by the statute. It is enough to say that while there is some conflict of opinion, the increasing weight of authority seems to be that when a motor-car is maintained by the paterfamilias for the general use and convenience of his family, he is liable for the negligence of a member of the family having general authority to drive it, while the car is being used as a family car. Smith v. Jordan, 211 Mass. 269,97 N.E. 761; Daily v. Maxwell, 152 Mo. App. 415,133 S.W. 351; Stowe v. Morris, 147 Ky. 386, 144 S.W. 52;McNeal v. McKain, 33 Okla. 449, 126 P. 742; and other cases in the notes above referred to. The inherent justice of the rule thus stated is apparent, and the chief reason why some courts have declined to follow it is because, on the facts of the case, they could not spell out the relation of master and servant, which at the common law must necessarily be established before the rule respondeat superior becomes applicable at all. See, for example, Doran v. Thomsen, 76 N.J.L. 754,71 A. 296. . . . The difficulty of formulating any satisfactory explanation for all of the recognized applications of the rule respondeat superior is well understood, but it is generally accepted as a necessary rule of public policy and social justice. Under an older and simpler economic system, the rule was restricted in its application to the relation of master and servant, and in its origin that relation rested on the right of one man to control the conduct of another. But theoretically as well as practically, the master's responsibility for the negligence of his servant extends far beyond his actual or possible control over the conduct of the servant. It rests on the broader ground that every man who prefers to manage his affairs through others, remains bound to so manage them that third persons are not injured by any breach of legal duty on the part of such others while they are engaged upon his business and within the scope of their authority. In this case the defendant desired to maintain a pleasure car for the convenience of her husband. If in carrying out her purpose she had employed a chauffeur to drive him about, she would have been liable, on the principle above stated, for the chauffeur's neglect while so engaged. Now, suppose that she chooses to eliminate the chauffeur and to authorize her husband to drive himself about. There seems to be no reason, except the traditional limitations of the rule respondeat superior, why she should not also be liable for his neglect, while so engaged. She is still accomplishing her original purpose, and still managing her own affair through another. She had no more control over the conduct of the chauffeur while he was driving her husband about, than she had over her husband's conduct while he drives himself about; and she may terminate the authority of either at will."

We there said, in effect, that at common law, while there is a conflict of authority, the weight of authority seems to be that when a motor-car is maintained by the paterfamilias for the general use and convenience of his family, he is liable for the negligence of a member of the family having general authority to drive it, while the car is being used as a family car, and that the inherent justice of the rule thus stated is apparent. The rule rests on the broad ground that every man who prefers to manage his affairs through others, remains bound to so manage them that third persons are not injured by any breach of legal duty on the part of such others while they are engaged upon his affairs and within the scope of their authority. In that opinion we intended to sanction the claim that at common law when a paterfamilias maintains an automobile for the pleasure, use and convenience of his family and in pursuance of such purpose authorizes members of his family to use it for such purpose, he by so doing makes such pleasure uses his affair, and constitutes members of the family so operating the car his agents engaged in the prosecution of his affairs.

We are satisfied that the same rules of public policy and social justice which entailed former extended applications of the rule respondeat superior to new situations at common law, still apply, and entail its application to the situation presented in this case. We hold, therefore, that the third, fourth, fifth and sixth reasons of appeal are not well taken.

There is no error.

In this opinion the other judges concurred.