Benn v. Forrest

• Decision Date: 22 May 1914
• Docket Number: 1043.
• Citation: 213 F. 763
• Parties: BENN v. FORREST.
• Court: U.S. Court of Appeals — First Circuit

213 F. 763

BENN v. FORREST.

No. 1043.

United States Court of Appeals, First Circuit.

May 22, 1914

C. M Van Slyck, of Providence, R.I., for plaintiff in error.

Nathan W. Littlefield, of Providence, R.I., for defendant in error.

Before PUTNAM, DODGE, and BINGHAM, Circuit Judges.

DODGE Circuit Judge.

The plaintiff in error (hereinafter called defendant) has not insisted at the argument upon the first two of his assignments of error, being those based upon the overruling of his demurrer to the declaration.

The declaration was in trespass on the case for personal injuries sustained by the defendant in error (hereinafter called plaintiff) on October 31, 1910, on Union street, in Providence, R.I., through being run into by an automobile while himself exercising due care. According to the declaration, the car was the defendant's, operated at the time by his servant or agent, and so negligently operated as to run into the plaintiff. The case went to trial on the defendant's plea of not guilty. The jury found him guilty, and assessed $3,500 damages.

It was not disputed that the plaintiff was run into and injured at the above time and place by a car registered in the defendant's name in Rhode Island, and driven at the time by one Stuart Angell, since deceased before the trial, who was its only occupant at the time. The defendant denied in his testimony that Angell was in his employ.

There was uncontradicted testimony by the defendant, or on his behalf, in substance as follows:

Having bought the car on October 14, 1910, he arranged with the directors of Joseph Benn & Sons, Incorporated, a Rhode Island corporation, operating mills at Greystone in that state, of whom he was one, that the car should be maintained and its running expenses paid by the corporation; that it was thereafter used for the convenience of the corporation and its officers, and for anything belonging to the corporation that Angell was engaged by the directors to drive it soon after October 14th, and did drive it for four or five weeks thereafter; and that Angell was paid by the defendant, but out of the corporation's funds. The defendant lived in England; most of the stock in the corporation belonged to him or members of his family; he was its president and treasurer he had come to Rhode Island with some of his family not long before the accident, and returned to England after it with them, early in the following December. While here they lived at the Crown Hotel, in Providence. He bought the car because he wanted to go in it to and from the mills, the bank, etc. It was agreed upon as fair, between him and the other directors, that he should use the car to take his family about when it was not in use for the corporation, and it was used, while Angell drove it, sometimes for the purposes of the corporation, and sometimes, when not so used, by him or his family for other purposes.

Upon this part of the case the most favorable view for the defendant which could have been taken was that it was for the jury to determine whether the car was being used at the time for the corporation's purposes or for his own private purposes, or by Angell for purposes authorized by neither. There was no direct evidence on this question, Angell having died before the trial; but there was evidence relating to the direction in which the car was going, its distance from the hotel above mentioned or from the garage at which it was kept, and the time of day at which the accident happened, or to other circumstances which might have been taken as indications that it was coming from the direction of the hotel, or as otherwise having some bearing upon the question which of the above uses was more probably then being made of it. We cannot say that the District Court was wrong in refusing the defendant's request to rule that there was no evidence to support a finding that the car was then being used for the defendant's purposes and Angell then acting as his servant. Instructions requested by him were given (1) that the plaintiff must prove Angell to have been his servant, and (2) not only in his general employ, but also to have been engaged in the performance of duties incident to that employment. A requested instruction that the defendant's ownership of the car, Angell's general employment by the defendant, if found by the jury, and the fact of his having been alone in the car were insufficient to warrant a finding that he was then engaged in the duty of such employment was, in our opinion, properly refused. The defendant's ownership of the car and Angell's general employment as his servant for the special purpose of operating it, at least warranted the inference that Angell was running it as his servant at the time in question, in the absence of evidence to the contrary. If, as a matter of fact, Angell was not then so running it, the fact should be peculiarly within the defendant's knowledge and the burden on him to establish it. As to this we agree with the view of the District Court in its opinion overruling a motion for a new trial.

Against the defendant's objection, a portion of a letter sent by the plaintiff to the defendant December 5, 1910, claiming to have received injuries from his car, was...