Colwell v. Ætna Bottle & Stopper Co. , 33 R.I. 531 ( 1912 )

This is an action of trespass on the case for negligence brought in Providence county and tried before a justice of the Superior Court and a jury in March, 1911, resulting in the direction of a verdict for the defendant by the court, after the close of the plaintiff's case, no evidence being offered by defendant.

The essential facts brought out from the plaintiff's witnesses are, in substance, that on August 30th, 1910, about nine o'clock P.M., the plaintiff was driving his automobile west on Washington street, Providence, and at the intersection of Jackson street his automobile was in collision with an automobile owned by the defendant, which was being driven north on Jackson street by one William H.H. Thornton, who was in the general employ of the defendant. Thornton was called as a witness by the plaintiff and in direct examination testified that he was a licensed chauffeur and that he was running the automobile, which was in collision with plaintiff's automobile, causing the accident complained of and that he was on the day of the accident employed by the defendant. In cross-examination, Thornton testified that he had been ordered by the manager of the defendant to take this car from its garage on Peck street to its other garage on Bradford street, both in Providence; that after he got to the Bradford street garage, it was his duty to wash the car and put it up for the night at that place; that he did drive to the Bradford street garage as ordered, arriving there about 7:30 P.M.; that instead of running his car into the garage, washing it and leaving it there for the night, he, without permission or authority from the defendant and against its express general orders, took the automobile and ran it off in another direction, to carry another of the defendant's employees to his home on Potter avenue, at said employee's request; that after leaving said other employee at his home on Potter avenue, he, Thornton, then went down to a restaurant on Westminster street and stopped there to get his own supper; and that after going into the restaurant and getting his supper, he again boarded the machine and drove it down Westminster street, and through Jackson street on his way to the Bradford street garage; and that the accident occurred, when Thornton was going to the Bradford street garage for the second time, on Jackson street at the intersection of Washington street.

At the close of the plaintiff's testimony the defendant also closed its case and moved for a direction of a verdict for the defendant, which motion was granted by the court. The plaintiff brings the case before this court upon his exceptions to the ruling of the justice presiding at the trial in allowing the defendant to cross-examine Thornton in the endeavor to show that he was not as a matter of fact engaged in the defendant's business, but was engaged on matters of his own, at the time of the accident, and in directing a verdict for the defendant, on the ground that at the time of the accident the chauffeur was not engaged in the defendant's service, but was acting for himself.

The plaintiff's first seven exceptions relate to the rulings of the court below in permitting certain questions asked in cross-examination of the chauffeur by the defendant's attorney for the purpose aforesaid, to be answered. The said exceptions are not mentioned in the brief filed on behalf of the plaintiff, nor were they pressed in argument before this court; and we do not understand that the plaintiff relies upon them. As the plaintiff called the chauffeur for the purpose of showing that, at the time of the accident, he was in the service of the defendant, so as to show the defendant's liability, as based upon his servant's negligence, it was proper that the defendant should be allowed to examine him fully as to the nature of the acts done by him at that time and prior thereto in order to get at the truth of the situation as to the nature of the chauffeur's acts in relation to the use of the automobile. In the case ofQuigley v. Thompson, 211 Pa. St. 107 (1905), where the same question as to the propriety of such cross-examination was raised on facts very similar to those in the case at bar, the court says (p. 108): "The only question raised by this appeal that need be considered is whether the fact upon which a non-suit was based was developed by an improper cross-examination of the plaintiff's witness. The action was to recover damages for injuries caused by being struck by the defendant's motor car. The plaintiff called as his witness the chauffeur, who at the time of the accident was operating the car, and examined him at length to show that at that time he was in the employ of the defendant, and to identify the car by proof of its number, size, equipments and general appearance. On cross-examination this witness was asked whether at the time of the accident he was not using the car for his own purposes and in violation of the orders of defendant. He answered under objection: ``I was operating the machine for my own personal use on an errand for myself. Mr. Thompson didn't know anything about it whatever. I had no orders from him. I took it out, breaking one of the rules, which I had no business to do.'" . . .

"The whole trend of the examination in chief of this witness was to establish facts and circumstances which would make the defendant answerable on the ground that the negligence alleged was that of his servant acting within the scope of his employment. It was competent in cross-examination to develop by the witness the fact, which qualified his testimony, that at the time of the accident he was using the machine in the prosecution of his own business and not in the business of his employer."

We are of the opinion that the examination was proper, and the first seven exceptions are overruled.

The eighth exception is to the ruling of the court in directing a verdict for the defendant on the ground above set forth. The plaintiff contends that the testimony should have been submitted to the jury on the question whether or not at the time of the collision, the servant and agent of the defendant corporation was acting within the scope of his employment in his master's business or on his own private business; and further contends that an automobile is an instrumentality, dangerous perse, and that, if the master intrusts such a machine to his servant for use upon a public highway and injury results from the negligence of the servant, the master is liable. But the cases cited in support of those contentions, depend upon facts and circumstances, so varied and so different from the facts of the case at bar, that we do not deem it necessary to review them, as in our opinion, such a review would unduly extend and encumber this opinion. We think the great weight of authority hereinafter cited completely disposes of both the above contentions, and adequately supports the ruling of the Superior Court in directing a verdict for the defendant. We are of the opinion that the testimony of the chauffeur as developed in cross-examination above referred to and approved, and which stands upon the record, uncontradicted, and unshaken upon further redirect examination, and which is in no way unreasonable or inconsistent, shows a state of facts which leads to the conclusion that, at the time of the accident, the defendant's servant was not acting within the scope of his employment. When he first arrived at the garage on Bradford street it was his duty, then, to take the automobile into the garage and wash it and put it up for the night. That was all that he was instructed or expected to do. He had no authority either express or implied to use the machine for the benefit of another employee, or for his own convenience in going to get his supper. His use of the automobile from the time he left the Bradford street garage and during the whole circuit that he made from that point to Potter's avenue, and from there to the restaurant on Westminster street, and from there back to the Bradford street garage, was unauthorized and beyond the scope of his employment. The case falls within a very distinct and important line of cases in this country, the principles of which are well set forth in Steffen v. McNaughton, 142 Wis. 49 (1910), where it appeared that on July 3, 1907, plaintiff's intestate was struck and killed by an automobile belonging to defendant and operated by his chauffeur.

At the time of the accident the chauffeur was alone in the automobile and was going to his home for dinner. Under the contract of employment the defendant did not furnish the chauffeur with his meals and the chauffeur went to his home for them. During the chauffeur's employment by the defendant of about two months he had taken the machine to a shop for repairs and he had taken and used it to go to dinner, perhaps ten times. He had not been directed by his employer to use the machine for this purpose and he had never obtained permission so to use it. The defendant testified that he did not see the chauffeur so use the machine and that he did not know that he so used it.

The trial court directed a verdict for the defendant, which was affirmed. Two questions arise: First: "Is an automobile perse a dangerous machine?" Second: "Was the chauffeur acting within the scope of his employment while driving the car at the time of the accident?"

"Upon the first inquiry we discover nothing in the construction, operation and use of the automobile requiring that it be placed in the category with a locomotive, ferocious animals, dynamite and other dangerous contrivances, and agencies. When properly handled and used, automobiles are as readily and effectually regulated and controlled as other vehicles in common use, and when so used they are reasonably free from dangers. The dangers incident to their use as motor vehicles are commonly the result of the negligent and reckless conduct of those in charge of and operating them, and do not inhere in the construction and use of the vehicles. It is well known that they are being devoted to and used for the purposes of traffic and as conveyances for the pleasure and convenience of all classes of persons and without menace to the safety of those using them or to others upon the same highway when they are operated with reasonable care. The defendant cannot therefore be held liable upon the ground that the automobile is a dangerous contrivance." (Citing cases). . . .

"The conditions of the contract of employment, under which the chauffeur was to provide himself with meals, carried with it the further condition that he was to have the required time at noon day, and might leave the service for such period of time as was required under the circumstances for this personal and private purpose. While he was so engaged his employment and the relation of master and servant were suspended for the time being, unless the facts of the case show that the defendant consented to the chauffeur availing himself of this use of the machine to facilitate his labor and service and in furtherance of the defendant's interests. The evidence will not support this inference. It is reasonably clear and certain that the defendant by his words, acts, and conduct never gave consent or permission to, nor did the contract of employment authorize, such a use of the machine by the servant. The facts and circumstances fail to show that the chauffeur was performing an act in obedience of an order of the defendant or a member of his family, or that he was doing something with the implied consent of the defendant. The law governing the liability of a master for the acts of the servant in this class of cases is embodied in the following comprehensive statement: ``For all acts done by a servant in obedience to the express orders or directions of the master, or in the execution of the master's business within the scope of his employment, and for acts in any sense warranted by the express or implied authority conferred upon him, considering the nature of the services required, the instruction given, and the circumstances under which the act is done, the master is responsible. Ritchie v. Waller, 63 Conn. 155, 160.'"

Again, the same general principles are set forth inDanforth v. Fisher, 75 N.H. 111 (1908), where the case is stated, as follows: "At five o'clock on the day of the accident McCauley, who was employed by the defendant as a chauffeur, took the automobile from the place where it was kept, drove to the defendant's store, and awaited orders. He was told to get his supper and to be at the New City Hotel with the automobile at a quarter before seven o'clock. After he had eaten supper, instead of taking the car to the hotel, according to the defendant's orders, he drove to West Manchester, a mile or two distant from his boarding place and in an opposite direction from the hotel, for the purpose of calling upon a friend. At the time of the accident he had finished his call and was on his way to the hotel.

"Although the evidence shows that McCauley was the defendant's servant, and that he drove the automobile against the plaintiff's horse and caused the animal to run away; it also shows that he took the automobile without the defendant's permission and went with it on an errand of his own; that he was acting for himself, and not for the defendant at that time. As it cannot be found from the evidence that McCauley was doing what he was employed to do at the time the plaintiff was injured, there was no error in the order of non-suit." . . . (p. 112). "The defendant is not liable merely because he was the owner of the automobile by which the plaintiff was injured. If the legislature can enact that an automobile or its owner shall be liable for any injury the driver may do to others wherever the driver would be, it has not seen fit to do so. Nor is there any force in the plaintiff's contention that the owner of an automobile is liable to strangers in the same way and to the same extent he would be if it were a wild animal." . . . "There is nothing inherently dangerous about an automobile, any more than about an axe. Both are harmless so long as no one attempts to use them, and both are likely to injure those who come in contact with them when they are used for the purpose for which they were intended."

The case was followed in Howe v. Leighton, 75 Atl. Rep. (N.H.) 102 (1910), where it was held that the owner of an automobile is not liable for injuries caused by his chauffeur's negligence while riding for his own pleasure and not upon the owner's business. See, also, to the same general effect: Jones v. Hoge, 47 Wash. 663; Lewis v. Amorous, 3 Ga. App., 50;McIntire v. Hartfelder-Gurbutt Co., 71 S.E. (Ga.) 492;Slater v. Advance Thresher Co., 97 Minn. 305; Reynolds v.Buck, 127 Iowa, 601; Doran v. Thomsen, 74 N.J.L. 445,76 N.J.L. 754; Daily v. Maxwell, 133 S.W. (Mo.) 351; Evans v.Dyke Auto Co. 121 Mo. App. 266; Patterson v. Kates, 152 Fed. 481; Stewart v. Baruch, 103 App. Div. (N.Y.) 577;Clark v. Buckmobile Co. 107 App. Div. (N.Y.) 120;Cunningham v. Castle, 127 App. Div. (N.Y.) 580; Vincent v.Crandall, 131 App. Div. (N.Y.) 200; Douglass v. Hewson, 142 App. Div. (N.Y.) 166; Fleischner v. Durgin, 207 Mass. 435;McCarthy v. Timmins, 178 Mass. 378; Mitchell v.Crassweller, 13 C.B. 235; Storey v. Ashton, 4 L.R.Q.B. 476; Huddy, Automobiles, 2d ed. Ch. III, § 2; Berry, Law of Automobiles, § 20, § 145; Babbitt, Law of Motor Vehicles, § 577; Davids, Do, §§ 13, 14, §§ 212, 213, 216, 217. The same general rule has been recognized in Rhode Island, in the case ofCampbell v. City of Providence, 9 R.I. 262.

We find no provision in our statute, Chapter 86, General Laws, 1909, relating to motor vehicles, which in any way changes the rules of law affecting the civil responsibility of the owner with respect to the acts of his servant outside the scope of his employment.

In Massachusetts, under a statute similar to ours in its general provisions, the court had occasion to consider this question, in the case of Trombley v. Stevens-Duryea Co.,206 Mass. 516 (1910). Plaintiff's horse became frightened and ran away by reason of the negligent way in which an automobile belonging to the defendant was driven. There was no evidence connecting the defendant with the accident, except as to the number of the registration tag on the automobile and the certificate of registration of that number showing that the automobile was registered in the name of the defendant. Held that there was evidence connecting the defendant with the ownership of the car. It could not be operated lawfully upon the highways unless it were registered by the owner or person in control and until rebutted the plaintiff could rely on the presumption that the requirements of the statute had been followed. The court says, at page 519: "But to recover, the plaintiff also was required to offer some evidence of the defendant's responsibility for the driver's negligence. The legislature might have said that whenever a registered automobile was operated on the public ways, the person, firm or corporation named in the certificate should be liable prima facie to other travelers for accidents caused by its mismanagement. The statute, however, goes no further than to provide, that for the purposes of the issuance, transfer and revocation of certificates and the enforcement of the penal provisions of the act, automobiles shall be identified by their register number, and their owner or owners ascertained from the certificate. The common law, therefore, controls, and there is no presumption from his mere physical possession, that the person operating the automobile was the servant or agent of the corporation. He may have hired or borrowed it or wrongfully appropriated it to his own use, and in neither event would the defendant be chargeable with his misconduct." . . .

See, also, Danforth v. Fisher, 75 N.H. 111, 112 (3). A case taking a different view, under a similar New York statute, is that of Ingraham v. Stockamore 118 N.Y. Supp. 399; it was a trial term case, in the Superior Court, does not appear to have been taken to a higher court, and stands entirely unsupported either in New York or elsewhere, so far as any cases have been called to our attention, and is not in accord with the other New York courts in cases cited, supra. The case of Mattei v.Gillies, 16 Ont. L.R. 558, rests partly upon the construction of the peculiar terms of the statute there in force, relating to the responsibility of the owner of a motor vehicle for injuries resulting from negligent use, and does not bear upon the case at bar. We find no case cited among all the cases submitted to us which takes a view contrary to that above quoted from the case ofTrombley v. Stevens-Duryea Co.; and we find no reason to take any different view with regard to the effect of our own statute above referred to.

Upon a careful review of the whole case, we are of the opinion that the Superior Court committed no error in the direction of a verdict for the defendant.

The plaintiff's exceptions are overruled, and the case is remitted to the Superior Court, with direction to enter its judgment upon the verdict for the defendant.