Harley C. Brown v. Walter P. Gallipeau
| Decision Date | 03 October 1950 |
| Docket Number | 1002. |
| Citation | 75 A.2d 694,116 Vt. 290 |
| Parties | HARLEY C. BROWN v. WALTER P. GALLIPEAU |
| Court | Vermont Supreme Court |
May 1950.
TORT for negligence in operation of motor vehicle. Trial was by court, Rutland Municipal Court, Dick, J. Judgment for the defendant.
Judgment affirmed.
Vernon J. Loveland and Donald Hackel for the plaintiff.
Clayton H. Kinney for the defendant.
Present SHERBURNE, C. J., JEFFORDS, CLEARY, ADAMS and BLACKMER, JJ.
This action grows out of a collision between plaintiff's automobile, while being operated by his minor son Richard, and an automobile operated by the defendant. Trial was by court. The plaintiff has excepted to the findings of fact and to the judgment for the defendant.
The findings show the following facts: Richard was 17 years old and lived with his parents in Castleton. He was employed in West Rutland and his earnings were to his own use. With plaintiff's permission he used plaintiff's automobile to go to and return from his place of employment. He had a sister who resided in North Clarendon. At some time prior to the accident his sister asked him to come over to her house to get some presents which she had for the family, including Richard and his parents. On the morning of December 24, 1947 the day of the accident, Richard asked if he could drive plaintiff's automobile to his sister's in North Clarendon to get the presents. Plaintiff permitted him to do so with the knowledge, although he had not requested it, that Richard was going to take the presents given by him and by the plaintiff and his wife to their daughter, and that he was also going to pick up some presents the daughter had for all of them. That morning, after he had received such permission, Richard drove plaintiff's automobile to his place of employment in West Rutland. Upon completion of the work day, at about 4 P. M., he proceeded, without deviation, to drive the automobile to his sister's place for the purposes mentioned, and in doing so drove easterly along River street in the city of Rutland en route to North Clarendon, and, in going through the intersection with Meadow street, collided with the defendant, who was driving in a southerly direction on the latter street. Meadow and River streets intersect at about right angles, and both were icy and slippery. There was a house and large tree at the northwesterly corner of the intersection, so that in approaching the intersection from the west Richard's vision to the left was obscured and he could not effectively see vehicles approaching the intersection on Meadow street from the north until almost in the intersection, and in approaching the intersection as the defendant was, his vision to the right was likewise obscured and he could not effectively see vehicles approaching the intersection on River street from the west until almost in the intersection. Richard looked to his right and then to his left and drove into the intersection at a speed of 25 miles per hour. As he entered the intersection he first saw the defendant's car. It was making a left turn and was about 6 feet to his left and too close to avoid a collision. Immediately prior to the collision the defendant, upon coming to the intersection, had stopped a car length from it preparatory to making a left turn onto River Street. He looked to his right, saw no vehicle approaching, and then proceeded into the intersection, turning his car to the left. As he was making the turn at 5 miles per hour he first saw the plaintiff's car when it was to his right and about 5 to 8 feet away and too close to avoid a collision. At the time of the collision plaintiff's car was about half way through the intersection and was to the right of the center of River street. Defendant's car struck plaintiff's car about in the middle. The court found that the defendant was negligent and that his negligence was a proximate cause of the accident. It also found that Richard was the servant of the plaintiff, and that the plaintiff, acting by his servant, was negligent, and that his negligence was also a proximate cause of and contributed to the accident.
The plaintiff excepted to the last finding on the grounds that the evidence does not support a finding that Richard was the servant of the plaintiff at the time of the accident, or that he was negligent, or that any negligence of his was a proximate cause of and contributed to the accident, and that such finding or conclusion of law is not supported by the other findings or the evidence. The plaintiff also excepted to two findings that support the finding that Richard was the servant of the plaintiff, but no error in them is pointed out in his brief.
Since the last finding is a conclusion of law the previous findings are to be construed to support it if this can reasonably be done; and we must assume in its favor that the court inferred such facts from the other facts certified as it ought to have done, or might fairly have done; and we do not for the purpose of sustaining the exception thereto read into the findings something which it not there, and which is not a necessary inference from the other facts found. Bove's Exr. v. Bove, 116 Vt. 76, 85, 70 A.2d 562; Abatiell v. Morse, 115 Vt. 254, 259, 56 A.2d 464, and cases cited.
The first question to be determined is whether the findings support the conclusion that Richard was the servant of the plaintiff. In Jones v. Knapp, 104 Vt. 5, 13, 15, 156 A. 399, a case where we declined to adopt the so-called "family purpose" doctrine, we referred to Doran v. Thomsen, 76 N.J.L. 754, 71 A. 296, 91 L.R.A. (N.S.) 355, 131 Am St Rep 671; and Missell v. Hayes, 86 N.J.L. 348, 91 A. 322. Those cases hold that to constitute the relation of master and servant as to third persons it is not essential that any actual contract should subsist between the parties or that compensation should be expected by the servant, and that while the relation of master and servant in its full sense invariably and only arises out of a contract between a servant and a master, yet such contract may be expressed or implied, and that the real test as to third persons is whether the act is done by one for another, however trivial, with the knowledge of the person sought to be charged as master, with his assent, expressed or implied, even though there was no request on his part to the other to do the act in question. This rule has been further approved in Maiswinkle v. Penn Jersey Auto Supply Co., 121 N.J.L. 349, 2 A.2d 593. This is the rule to be applied here.
In addition to our statement of what the findings show, we take judicial notice that in driving from Castleton to his work in West Rutland, a distance of several miles Richard traveled part way toward his sister's home in North Clarendon. Hence, when Richard asked on the morning of the accident and was given permission to drive the car to North Clarendon, the reasonable inference is that he was to continue on from West Rutland after work, as he in fact did. In connection with the finding that the plaintiff permitted Richard to drive to North...
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