Colwell v. Ætna Bottle & Stopper Co.

• Decision Date: 15 March 1912
• Parties: COLWELL v. ÆTNA BOTTLE & STOPPER CO.
• Court: Rhode Island Supreme Court

82 A. 388

33 R.I. 531

COLWELL

v. ÆTNA BOTTLE & STOPPER CO.

Supreme Court of Rhode Island.

March 15, 1912.

Exceptions from Superior Court, Providence and Bristol Counties; George T. Brown, Judge.

Action by Leon S. Colwell against the Ætna Bottle & Stopper Company. Verdict was directed for defendant, and plaintiff brings exceptions. Overruled, and case remanded, with direction to enter judgment on the verdict.

Frank L. Hanley, for plaintiff.

Frank T. Easton, for defendant.

PARKHURST, J. 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 30, 1910, about 9 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 employés to his home on Potter avenue, at said employés request; that, after leaving said other employé 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; 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 of Quigley v. Thompson, 211 Pa. 107, 108, 60 Atl. 506, 507 (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: "The only question raised by this appeal that need be considered is whether the fact upon which a nonsuit 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 exceptions 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 per se, 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 these 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 incumber 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 employé, 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 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, 124 N. W. 1016, 26 L. R. A. (N. S.) 382, 19 Ann. Cas. 1227 (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...