Baker v. R.I. Ice Co.

• Court: Rhode Island Supreme Court
• Writing for the Court: CONDON, Justice.
• Citation: Baker v. R.I. Ice Co., 72 R.I. 262, 50 A.2d 618 (R.I. 1946)
• Decision Date: 20 December 1946
• Docket Number: No. 8807.,8807.
• Parties: BAKER v. RHODE ISLAND ICE CO.

50 A.2d 618

BAKER

v.RHODE ISLAND ICE CO.

No. 8807.

Supreme Court of Rhode Island.

Dec. 20, 1946.

Exceptions from Superior Court, Providence and Bristol Counties; Louis W. Cappelli, Judge.

Action of trespass on the case by James L. Baker against the Rhode Island Ice Company for personal injuries sustained as the result of being struck by defendant's truck. Judgment of nonsuit, and plaintiff brings an exception.

Exception sustained and case remitted.

Kennedy & Greene, of Woonsocket, for plaintiff.

Sherwood & Clifford, Sidney Clifford, and Raymond E. Jordan, all of Providence, for defendant.

CONDON, Justice.

This is an action of trespass on the case for negligence in which plaintiff was adjudged nonsuit in the superior court, on the motion of the defendant. The case is here on plaintiff's exception to that ruling.

It appears from the evidence that plaintiff sustained personal injuries by reason of being struck by defendant's truck which was operated, at the time of the accident, by Henry Svezek, an employee of defendant. The accident occurred at about eight o'clock in the evening of August 3, 1945, on or near a public highway in the village of Forestdale in the town of North Smithfield.

On the morning of the same day Svezek had taken the truck from its garage at 407 Arnold street, Woonsocket, to haul ice from the defendant's, Pawtuxet Valley ice plant to the village of Primrose. The scene of the accident was not on the traveled highway route between those points nor was it on the route from Primrose to the garage in Woonsocket whence Svezek was supposed to return the truck at the end of his workday, which was usually about 4 or 4:30 o'clock in the afternoon. On the day of the accident he did not so return it but became involved in the collision with the plaintiff's automobile in Forestdale. From the testimony it appeared that Svezek was intoxicated at the time of the accident.

Defendant, in its brief, conceded ‘that initially the truck was being operated with the consent of the defendant.’ But it contended ‘that consent was limited to the performance of the defendant's business until 4:30 P.M. and to operation on the normal route between Primrose and Woonsocket.’ It further contended that the uncontradicted evidence showed that the accident occurred almost four hours after Svezek's workday normally was supposed to end and at a place some three miles distant from the normal route which he was supposed to follow. For those reasons defendant's counsel argued that the justice of the superior court did not err in granting defendant's motion for a nonsuit, since there was no evidence that, at the time of the accident, Svezek was operating the truck with his employer's consent or that he was on the business of his employer at that time.

Plaintiff on the other hand contended that since the evidence shows that Svezek took the truck with the consent of the defendant it makes no difference that he did not return it at 4:30 p. m. or that he was not on the normal route of the truck when the accident occurred. He argued that, by virtue of General Laws 1938, c. 98, § 10, as amended by Public Laws 1940, c. 867, the initial consent of the defendant to the operation of the truck by its employee, which is established by the evidence and admitted by defendant, made the employee defendant's agent for whose negligence thereafter in the operation of the truck upon the public highway defendant was responsible. And he further argued that evidence that the employee had deviated from the course of his employment in driving the truck several miles distant from its normal route and in keeping it beyond the time he was supposed to return it to defendant did not constitute, as a matter of law, a revocation of defendant's initial consent to the operation of the truck by its employee upon the highway. If it did, plaintiff contended, that would be tantamount to applying the old common-law rule that the principal was not legally responsible for the acts of his agent while acting beyond the scope of his agency, which rule, he further argued, had been abrogated by § 10, as construed by this court.

The question here is thus fundamentally one of the scope of the application of § 10 to the facts in evidence, and also, perhaps, of a further construction of that section. The pertinent part of § 10 reads as follows: ‘Whenever any motor vehicle shall be used, operated, or caused to be operated upon any public highway of this state with the consent of the owner, or lessee, or bailee, thereof, expressed or implied, the operator thereof, if other than such owner, or lessee, or bailee, shall in case of accident, be deemed to be the agent of the owner or lessee, or bailee, of such motor vehicle * * *.’ (Italics ours) This section was originally P.L.1927, chap. 1040, sec. 3. Later it was amended in some particulars, which are not of importance here, by P.L.1929, chap. 1429, sec. 10. It was again amended by P.L.1933, chap. 2046, and the words which we have italicized above were deleted from the section. As thus amended it became § 10 of chap. 98 in the revision of the General Laws of 1938. However, the deleted words were restored by the enactment of P.L.1940, chap. 867.

In its various forms the section has been before this court for construction in a number of cases, but, for our purposes in considering its effect under the facts of the case at bar, we need refer only to those cases which involved the section when it contained the words which we have italicized. The section was first construed in Guerin v. Mongeon, 49 R.I. 414, 143 A. 674. In that case defendant's automobile was taken by his son to deliver some groceries which a customer had purchased at defendant's grocery store, where the son was employed. On his way he met some friends and agreed to take them to their home which was a mile distant in a direction away from the route which he should have taken to deliver the groceries. While thus engaged he became involved in an accident.

Defendant in that case testified that his son had no authority to use the automobile. On those facts this court said that, under the rule of the common law, the defendant was not responsible for his son's negligence because ‘he had departed for the time being from the course of his employment.’ But the court further said that the common law did not apply because, under the statute, if the consent of the owner is proved, ‘it is no longer a defense in case of accident that the servant or agent to whom the use or...