Charles W. Gutzwiller v. American Tobacco Co.

• Decision Date: 16 November 1923
• Parties: CHARLES W. GUTZWILLER v. AMERICAN TOBACCO COMPANY ET AL
• Court: Vermont Supreme Court

122 A. 586

97 Vt. 281

CHARLES W. GUTZWILLER v. AMERICAN TOBACCO COMPANY ET AL

Supreme Court of Vermont

November 16, 1923

October Term 1923.

ACTION OF TORT for negligence. Plea, the general issue. Trial by jury at the March Term, 1923, Rutland County, Chase, J presiding. Verdict and judgment for the plaintiff. The defendant American Tobacco Company excepted. The opinion states the case.

Judgment affirmed.

Stickney Sargent & Skeels and Walter S. Fenton for the defendant American Tobacco Co.

Jones & Jones for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

SLACK

This action was brought against Philip J. Wood, John F. Schmich, and the American Tobacco Company to recover damages for personal injuries sustained by the plaintiff, on the evening of December 25, 1922, when, owing to the alleged negligence of Schmich, an automobile owned by the American Tobacco Company and driven by Schmich, collided with a motor cycle owned and driven by the plaintiff. The collision occurred on Wales Street in the city of Rutland. There was a trial by jury resulting in a verdict and judgment against Schmich and the American Tobacco Company, the action having been discontinued as to Wood. At the close of all the evidence, the American Tobacco Company, hereafter referred to as the defendant, moved for a directed verdict, as to it, on the ground that there was no evidence which tended to show that on the occasion in question the automobile was being used by Schmich in its business. The motion was overruled and the defendant saved an exception. The only question for review is whether the court erred in disposing of this motion. If the evidence viewed in the light most favorable to the plaintiff, as it must be (Morris v. Trudo, 83 Vt. 44, 74 A. 387, 25 L. R. A. [N. S.] 33), fairly tends to support the verdict, the judgment must stand; otherwise, it cannot.

The undisputed evidence tended to establish these facts: At the time of the accident, Schmich had been in the employ of the defendant for about a year and a half, selling tobacco and cigars in certain territory in Vermont, with headquarters at Rutland. Sometime in the spring of 1922, the defendant furnished him with the automobile he was using at the time of the accident to use in its business, and for no other purpose, and gave him written instructions to place it in a reliable garage immediately at the close of business each day and not to take it out until the next business day, and to keep with it, at all times, all tools and accessories that belonged to it. About the middle of December, 1922, he received further written instructions to place the automobile in storage immediately after the close of business on December 23, and not to take it out again until January 2 following. This was the Christmas vacation period, during which Schmich was not required, or expected, to do any work for the defendant but was still under pay. December 23, 1922, fell on a Saturday, and under his regular employment, Schmich was to quit work at 12:30 p. m. on Saturdays. Instead of quitting work at that time on December 23, Schmich worked until 5:30 or 6:00 o'clock, and then drove the automobile to his home on East Street. To complete the work required of him under his employment, he still had to make out and mail to the defendant his weekly expense account, a report of that day's work, a report on the automobile, and perhaps some other reports. On arriving home, he found his brother-in-law in such mental condition that he was taken to Brattleboro the next night. Schmich remained with his brother-in-law Saturday night and Sunday, and Sunday night went with him to Brattleboro, returning to Rutland about three o'clock the following morning. On the afternoon of December 25, Schmich made out the reports above mentioned, doing such of that work as he could at his home, and the rest at the Berwick Hotel. When he went to the hotel about six o'clock, he took the automobile which had stood in his dooryard since the Saturday night previous. After com- pleting and mailing his reports, at the hotel, he started to return to his home, with the automobile, to get certain tools and accessories which belonged with it, but had been kept at his home during the summer, preparatory to placing it in storage in accordance with his instructions, and got as far as Wales Street when the accident occurred. In the report which he made to the defendant on December 25, Schmich stated that the automobile was placed in storage the Saturday before, that is, December 23. At the time he mailed that report, he also mailed notice to the defendant that his term of employment with it would end January 1, 1923. There was no evidence that the defendant knew that the instructions...