Brown v. Wright , 100 Conn. 193 ( 1923 )

The finding as to the evidence offered by both parties does not give a clear presentation of the relations of the different defendants to the stalled automobile and to the collision. From the above facts, claimed to have been proved by both parties, the following facts could have been reasonably and logically found by the jury: Julia Shea purchased the automobile from the defendants Howard J. Wright and William J. Donovan, and took title to and possession of it in May, 1920, but had not completed all payments on it at the date of the collision. She was unable to learn to operate it and desired to sell it. She put the automobile in a garage. She instructed William J. Donovan to demonstrate it for sale. On the day of the collision, she asked William J. Donovan to drive her to Hartford, so that she could exhibit the car to a prospective customer there. William J. Donovan was unable to comply and refused, but hired his cousin Dennis Donovan to drive the car. Dennis Donovan was not then in the regular employ of William J. Donovan or Julia Shea. The defendant Howard J. Wright had dissolved partnership with William J. Donovan before the time of the collision.

While there are other subordinate facts that the claims of the parties would justify the jury in finding, there are no others that reasonably and logically could connect William J. Donovan with the transactions underlying this action.

From the above facts which the jury could have found, the only conclusions which the jury could logically and legally arrive at, were that Julia Shea owned the stalled automobile at the time of the collision, which was then being driven by Dennis Donovan. The employment of Dennis to drive the car was a fact known to, acquiesced in, and ratified by Julia Shea, or the jury, by a fair inference, could have so found; and also that Dennis Donovan was her agent in driving the car.

The court instructed the jury that if the plaintiff had established his case of negligence against the parties responsible for the collision, then, under the evidence, the plaintiff was entitled to a verdict against the defendant Dennis Donovan, the operator of the car, but was not entitled to a verdict against the defendant Howard J. Wright.

The court left it for the jury to determine whether Julia Shea was the owner of the stalled car, and whether the driver was her agent.

The defendants' seventeenth assignment of error relates to the charge as to the possible liability of William J. Donovan. The court charged as follows: "There is one other horn to this particular dilemma; (there are some more horns here but I haven't got to them yet) which I think I should define to you, and that is that it seems to me it ought to be possible to find that Dennis Donovan was the servant of both Julia Shea and William J. Donovan on the day in question. If you should find, for instance — I don't care where the title of this car is, it is in one or the other, of William J. Donovan or Julia Shea, but for the purpose of this discussion I don't care where it is — that the car was owned by one of them or both of them. Apparently they both had an equity in it at the time and were jointly engaged in a joint enterprise in getting rid of it and were jointly interested in the enterprise and the result of it, and they jointly employed this Dennis Donovan to drive this car for this demonstration purpose, I can see no objection why, beyond having a temporary partnership if you like, a temporary association for this particular sale, and that they might both be superiors and Dennis Donovan might be the servant of both, so that those are the three ways in which you could find against the defendant Julia Shea, if you find for the plaintiff: first, that she was a joint tort feasor, as I have discussed it with you; and second, that she and not William J. Donovan was the superior of Dennis Donovan and that he was her servant on this day, and that in that case, of course, you will find in favor of William J. Donovan; and third, that Julia Shea and William J. Donovan were engaged in a joint enterprise at the time and Dennis Donovan was the servant of both of them."

Under the finding as to the facts claimed to have been proved, there was no basis for a finding by the jury that Julia Shea and William J. Donovan were engaged in a joint enterprise in getting rid of the car and the result of it, and that Dennis Donovan was the servant of both Julia Shea and William J. Donovan on the day in question, in such a sense as to make both liable for his negligent driving, if proved. Let us take the situation in its most unfavorable light as to William J. Donovan as disclosed by the finding of facts claimed to have been proved by the parties, to the effect that he undertook generally to exhibit the car to possible purchasers, and on this occasion delegated that task to Dennis Donovan. Such delegation on this record was either on the express or implied authority of Julia Shea, or it was ratified by her; this would be especially true if, in fact, as the arguments and charge indicate (but the record does not show), she rode in the car at the side of Dennis during the entire trip. Under such circumstances Dennis was the agent of Julia Shea, and if damage resulted to Julia from the conduct of Dennis, William J. Donovan would only be responsible to Julia in case he had not exercised due care in the selection of Dennis. For torts as to third parties, Julia would be liable as for torts of any agent. These principles of law the charge objected to failed to adequately present in connection with the facts claimed to have been proved. Mechem on Agency (2d Ed.) Vol. 1, § 332;Davis v. King, 66 Conn. 465, 34 A. 107. The seventeenth assignment of error was, therefore, well taken as to the defendant William J. Donovan.

The complaint alleges two grounds of negligence: (1) the failure to use due care; (2) the failure to observe the statutory duty as to lights. The general verdict involves finding the issues for the plaintiff as to both grounds of negligence. The defendants did not seek to protect themselves by having interrogatories propounded by the court as to the finding of the jury on each ground of negligence alleged. Wladyka v.Waterbury, 98 Conn. 305, 313, 119 A. 149. Errors in the charge, under these conditions, in order to constitute reversible error, must be such as relate to both grounds of negligence found proven by the jury. The seventeenth assignment of error, which we have held well taken, was of this character, because it was erroneous in relation to William J. Donovan as to either ground of negligence found proved.

The remaining eighteen grounds of error are either so obviously correct as not to merit discussion, or relate only to one of the grounds of negligence alleged, namely, as to the performance of the statutory duty as to lights. The effect of this situation is similar to that set forth in Arnold v. Lane, 71 Conn. 61, 65,40 A. 921.

There is no error in the judgment as to all the defendants except William J. Donovan.

The judgment is affirmed as to Julia Shea and Dennis Donovan, and is set aside and a new trial ordered as to William J. Donovan.

In this opinion the other judges concurred.