Massart v. Narragansett Electric Co.

• Court: Rhode Island Supreme Court
• Writing for the Court: SWEENEY, Justice.
• Citation: Massart v. Narragansett Electric Co., 54 R.I. 154, 171 A. 238 (R.I. 1934)
• Decision Date: 16 February 1934
• Docket Number: Nos. 7421, 7422.,s. 7421, 7422.
• Parties: MASSART v. NARRAGANSETT ELECTRIC CO. (two cases).

171 A. 238

MASSART

v. NARRAGANSETT ELECTRIC CO. (two cases).

Nos. 7421, 7422.

Supreme Court of Rhode Island.

Feb. 16, 1934.

Exceptions from Superior Court, Providence and Bristol Counties; Philip C. Joslin, Judge.

Actions on the case for negligence by Anna Irene Massart and by Louis H. Massart against the Narragansett Electric Company. Verdict in favor of plaintiff in each case, and defendant brings exceptions.

Exceptions overruled, and each case remitted, with direction to enter judgment on the verdict.

Walter I. Sundlun and Baker & Spicer, all of Providence, for plaintiffs.

Sherwood & Clifford and Sidney Clifford, all of Providence, for defendant.

SWEENEY, Justice.

These actions on the case for negligence were tried together in the superior court, and the jury returned a verdict for the plaintiff in each case. The cases are before this court on defendant's exceptions.

The following facts are undisputed: December 15, 1929, about 6:15 o'clock, p. m., plaintiffs were riding in their automobile on Huntington avenue in Providence. Mr. Massart was driving. He saw defendant's automobile, when it was about 500 feet away, rapidly approaching in a zigzag manner. Mr. Massart drove his automobile close to the curbing on his right and stopped. When defendant's automobile was near the plaintiffs, it veered to its left and ran head-on into the front of plaintiffs' automobile. Plaintiffs were injured, and their automobile was badly damaged. Both vehicles were lighted. Defendant's automobile was being operated by one Conyers. He was immediately arrested for operating a motor vehicle while intoxicated, and subsequently paid a fine and costs. The negligence of Conyers is unquestioned it was admitted that Conyers was driving the automobile with defendant's consent.

The defenses were (1) that Conyers was a bailee of the automobile; (2) that he was not acting as the servant of defendant. Defendant called as a witness the supervisor of "substation maintenance." He testified he was the superior of Conyers; that Conyers was foreman in the substation; that he was subject to call twenty-four hours a day; that, if trouble developed in the substation, the foreman was the man called to make repairs, and "the fact that he was on call twenty-four hours a day necessitated his having a car at his disposal for that period of time and he was therefore allowed to drive the car home at night so he could respond to those calls." Conyers lived at Lakewood, more than one mile from the Harris avenue substation. Defendant paid the rent for a garage where Conyers kept the car at night and also paid for the gasoline, oil and repairs.

Conyers testified that on the day of the accident he reported for work at the Harris avenue substation; that he then went to work at the Elmwood condenser; that he did not go home to dinner as usual, but went to work on Admiral street in the afternoon and about 5 o'clock went to a house in East Providence to get a pint of whisky for an employee at the Elmwood condenser; that while at the house he took two drinks; that he then drove to headquarters at Harris avenue, where he stopped to see if anybody was there; and that, finding no one, he started for home down Huntington avenue and intended to stop at the Elmwood condenser to deliver the whisky. lie also testified that he was not required to use any particular route in going home and that Huntington avenue was one of the three ways generally used by him in going to his home in Lakewood from the substation on Harris avenue.

At the close of the testimony defendant's attorney made a motion for directed verdicts on the ground that Conyers was a bailee of the automobile and not a servant of the defendant when he was not carrying out its business. The motion was denied and exception noted. The jury returned a general verdict for each plaintiff, and found specially that at the time of the accident Conyers was not a bailee of defendant's automobile. The trial justice denied defendant's motions for new trials in a carefully prepared rescript in which he considered the contentions made by defendant's attorney and held that the verdicts were supported by the evidence and did substantial justice. Defendant's exception to this decision and to the denial of its motions for directed verdicts will be considered together.

Each party claimed the benefit of section 10, c. 1429, Pub. Laws 1929, which provides, in substance, that whenever any motor vehicle shall be operated upon any public highway "with the consent of the owner, or lessee, or bailee, thereof, expressed or implied, the operator thereof, if other than such owner, or lessee, or bailee, shall in case of accident, be deemed to be the agent of the owner or lessee, or bailee. * * *" (This section has been substantially amended by chapter 2046, Pub. Laws 1933.)

The manifest purpose and intent of the Legislature in passing this statute was to enlarge the common-law liability of the owner of an automobile who consented to its use by a person other than his bailee or lessee. The substance of this section was formerly section 3, c. 1040, Pub. Laws 1927. When construing this latter section in Guerin v. Mongeon, 49 R. I. 414, 143 A. 674, 675, this court said: "The effect of the act is to extend the common-law liability of one who consents to the use by another of a motor vehicle which he owns or legally possesses. * * * If the owner's consent, either express or implied, is proved, it is no longer a defense, in case of accident, that the servant or agent, to whom the use or operation of the vehicle has been intrusted, has temporarily departed from the course of his employment or the scope of his agency." In Kernan v. Webb, 50 R. I. 398, 148 A. 186, 188, when considering the same statute, the court said: "The statute in question enlarges the legal liability of the owner who intrusts his motor...