Furlong v. Donhals, Inc.

• Decision Date: 14 January 1958
• Docket Number: No. 9607,9607
• Citation: 137 A.2d 734,87 R.I. 46
• Parties: Joseph FURLONG v. DONHALS, Inc. Ex.
• Court: Rhode Island Supreme Court

Page 734

137 A.2d 734

87 R.I. 46

Joseph FURLONG v. DONHALS, Inc.

Ex. No. 9607.

Supreme Court of Rhode Island.

Jan. 14, 1958.

Sidney L. Rabinowitz, Sherwood & Clifford, Raymond E. Jordan, E. Howland Bowen, Providence, for plaintiff.

Higgins & McCabe, Eugene V. Higgins, Providence, for defendant.

PAOLINO, Justice.

This action of trespass on the case for negligence was tried before a justice of the superior court sitting with a jury. The defendant's motion for a directed verdict was granted. The case is before us on the plaintiff's exception to the granting of such motion and certain other exceptions to the exclusion of evidence.

The declaration, which consisted of one count, alleged in substance that defendant was in possession of an automobile which was being operated by its servant or agent on Ministerial Road in the town of South Kingstown; that plaintiff was a passenger therein; and that as a result of the negligent operation of said automobile plaintiff sustained personal injuries. To this declaration defendant filed a plea of the general issue and a second plea in which it alleged that plaintiff was injured in the course of his employment with defendant and that therefore he could not maintain the instant action because of the provisions of the workmen's compensation act, General Laws 1938, chapter 300, as amended. The plaintiff filed a replication to the second plea denying the allegations thereof.

The following pertinent facts appear from the evidence. The plaintiff testified that on July 15, 1953, the day prior to the accident in question, he was hired as a waiter by one Michele, the maitre d'hotel of the supper club at the Theatre-By-The-Sea at Matunuck; that his hours of work were from 6 p.m. to 1 a.m.; that he began his employment on that day and worked during these hours; and that he took all his orders from Michele as to what work he was to do at the club. It is undisputed that defendant was plaintiff's employer on July 15 and 16, 1953.

The plaintiff testified further that on July 16, 1953, the day of the accident, while they were in the kitchen he overheard Michele tell the bartender to be ready in about half an hour to go to the Kingston station to pick up some waiters he had hired from an agency in New York; and that plaintiff then went outside in the yard and while he was at a point some 30 or 40 feet from the kitchen he heard Michele tell the bartender he 'better get going' and to use his, the bartender's own automobile.

The plaintiff also testified that when the bartender came out of the restaurant he asked plaintiff to take a ride with him, and that plaintiff went at defendant's request and invitation. The plaintiff further testified that he did not intend to do anything at all for his employer on the trip; that he had nothing to do with the route taken by the bartender; that he did not intend to be of assistance in any manner; that he probably would have helped him 'change a flat tire or something like that'; and that even if he had been requested to help with the luggage of the employees to be picked up at the railroad station, he would have 'flatly refused.'

It appears from plaintiff's testimony and from that of Lieutenant Joseph B. Congdon of the South Kingstown police that the automobile in question was being operated at the time of the accident by the bartender, and was owned by Steven Lauria of Brooklyn, New York. The plaintiff testified that the automobile was being driven at a normal speed of 35 to 40 miles an hour; that the driver evidently reached into his right-hand trouser pocket for something; that the automobile veered to the right and struck a tree; and that at the time there were no other vehicles on the road.

On January 21, 1953 the direct, cross and redirect examinations of plaintiff were concluded and he was permitted to leave the witness stand. His counsel then put in evidence certain exhibits and read into the record certain medical testimony, after which the hearing was adjourned until the following Monday, January 24. Upon resumption of the trial, plaintiff's counsel stated that he was going to recall plaintiff for further examination and that this would complete his case. He thereupon attempted to recall him. However, defendant objected on the ground that plaintiff's testimony had been concluded on a previous day and that it was irregular to recall him at that time. The trial justice thereupon asked plaintiff's counsel to state the nature of the testimony to be offered. In response thereto counsel made certain offers of proof which the trial justice excluded upon the ground that the offered testimony was immaterial and inadmissible. He also ruled that plaintiff could not be recalled for such further examination.

The plaintiff then offered in evidence defendant's second plea as an admission on its part that plaintiff was lawfully in the automobile at the time of the accident. The defendant's objection to the introduction of said plea as evidence was sustained by the trial justice. Upon this state of the evidence plaintiff rested his case. The defendant then rested its case without offering any testimony and thereupon its motion for a directed verdict was granted by the trial justice on the ground that he could not see any authority in the bartender to invite plaintiff and subject defendant to liability.

The plaintiff's first four exceptions are based on the refusal of the trial justice to permit plaintiff to be recalled to testify to the matters presented by him in his offer of proof. The first exception relates to the refusal to permit plaintiff to testify that at about 4:30 in the afternoon of the day preceding the accident Michele had sent the same bartender to Wakefield for ice and that one of the college boys serving as a waiter went along with him. The second exception is based on the trial justice's refusal to permit plaintiff to testify that some time in September 1953, while plaintiff was still in the hospital, Michele visited him and made a certain statement to him which plaintiff's counsel was not aware of before, namely, that Michele during that visit said in substance that he knew plaintiff was with the bartender on the trip in question.

Exception numbered 3 is based on the refusal of the trial justice to permit plaintiff to be recalled as a witness to testify as indicated above. Exception 4 relates to the trial justice's refusal to accept the offer of proof made by plaintiff which included, in addition to the proposed evidence encompassed by exceptions 1 and 2, an offer to present evidence as to where Michele, the maitre d'hotel, was at the time that the bartender drove out of defendant's premises with the plaintiff as a passenger. This evidence was offered to prove that Michele had knowledge of plaintiff's presence in the car which was involved in the accident.

In exception 5 plaintiff claims that the trial justice erred in refusing to accept as evidence the second plea of defendant, and exception 6 is based on the granting of defendant's motion for a directed verdict.

We shall first consider plaintiff's contentions under exceptions 1, 2, 3, and 4, namely, that the trial justice erred in refusing to permit him to be recalled as a witness and to present the testimony contained in the offers of proof referred to in exceptions 1, 2 and 4.

It is pertinent to point out at this time that the trial justice rejected the offers of proof and denied the plaintiff permission to be recalled after his counsel had stated fully to the court the nature and substance of the proffered testimony. We deem it also important to emphasize that he based his rulings on the ground that the testimony offered was immaterial and irrelevant to the main issues in the case, and not on the fact of any irregularity in the order in which the proof was offered.

The plaintiff concedes that the recall of a witness and the scope and limits of re-examination lie within the sound discretion of the trial court, but argues that material evidence should not be rejected simply because it is offered out of the regular order. We agree with this contention and with the reasoning of this court in Souza v. United Electric Rys., 49 R.I. 430, 143 A. 780, and Gillogly v. New England Transp. Co., 73 R.I. 456, 57 A.2d 411. In the Gillogly case, supra, this court said in 73 R.I. at page 463, 57 A.2d at page 414, 'It is well established that it is within the power of a trial justice to regulate the order of proof. In his discretion he may admit competent evidence at any stage of the trial. * * * The aim of the court in regulating the course of proof in each case should be to promote justice and not to prevent the admission of material evidence, if the party offering such evidence is not...