McIver v. Schwartz
| Decision Date | 06 March 1929 |
| Docket Number | No. 6579.,6579. |
| Citation | 145 A. 101 |
| Parties | McIVER v. SCHWARTZ. |
| Court | Rhode Island Supreme Court |
Exceptions from Superior Court, Providence and Bristol Counties; Arthur P. Sumner, Judge.
Action of trespass on the case by Daniel McIver against Sam Schwartz. Verdict was rendered for plaintiff and a new trial denied, and defendant brings exceptions. One of exceptions sustained, and case remitted for new trial.
Curran & Hirshfield and John L. Curran, all of Providence, for plaintiff.
Sol S. Bromson, of Providence, for defendant.
This is an action of trespass on the case for negligence to recover for damage caused to plaintiff's automobile by a collision between the same and the defendant's automobile. The trial in the superior court resulted in a verdict for the plaintiff for $297.80, and the case is before us on the defendant's exceptions to the refusal of the trial justice to direct a verdict for the defendant and to the refusal of said justice to grant the defendant a new trial.
The collision occurred July 10, 1926, in the city of Providence at the intersection of Glenham and Taylor streets. The plaintiff's automobile which was operated by his son, was proceeding west on Glenham street, and defendant's car, which was operated by William Riley, was proceeding north on Taylor street. The jury were fully justified in finding that the driver of the defendant's automobile was negligent and that the driver of the plaintiff's automobile was free from negligence.
The defendant's main contention appears to be that Riley, the driver of his automobile, was not, at the time of the accident, acting within the scope of his employment.
The defendant conducts a grocery store and had at different times employed Riley to deliver groceries with defendant's automobile. The defendant, when called as a witness by the plaintiff, admitted that he had, on the morning of the accident, sent Riley to deliver groceries with said automobile, but, on cross-examination by his attorney, insisted that Riley had completed his work and returned the automobile before the accident occurred and that defendant did not know until after the accident that Riley had again taken the automobile. Defendant admitted that at the time of the accident the automobile contained milk bottles and market baskets which had not been returned to the store. He also admitted that at the time of the accident he had not paid Riley for making deliveries that morning. Defendant testified that Riley had taken the automobile without permission to go to his home for lunch, but no explanation was made why Riley was in possession of the key to the automobile. Although Riley, the driver of defendant's automobile, was in the courtroom during a part of the time occupied by the trial, the defendant failed to call him to testify. A jury might naturally and properly have inferred that Riley would give no testimony...
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