Smith v. Tompkins, s. 7057-060.

• Decision Date: 01 July 1932
• Docket Number: Nos. 7057-060.,s. 7057-060.
• Citation: 161 A. 221
• Parties: SMITH v. TOMPKINS, and three other cases.
• Court: Rhode Island Supreme Court

161 A. 221

SMITH

v. TOMPKINS, and three other cases.

Nos. 7057-060.

Supreme Court of Rhode Island.

July 1, 1932.

Exceptions from Superior Court, Washington County; Jeremiah E. O'Connell, Judge.

Actions by Greta Smith, by Cecelia Smith, by Hannah Sullivan, and by James McMillan, against Edwin H. Tompkins. Verdict for defendant in each case, and plaintiffs bring exceptions.

Exceptions overruled, and each case remitted, with direction.

James J. Corrigan, of Providence, for plaintiffs.

William S. Flynn and Edmund W. Flynn, both of Providence, for defendant.

SWEENEY, J.

These actions of the case for negligence are brought to recover damages for personal injuries sustained by the plaintiffs while riding as guests in the defendant's automobile. The actions were tried together, and the jury returned a verdict for the defendant in each case.

The cases are before this court on the exceptions of each plaintiff. The exceptions are the same in each case, and are all based upon the exclusion of testimony.

During July, 1930, defendant occupied a cottage at Narragansett. Plaintiffs were employed as servants in an adjoining cottage. July 28, about 11 o'clock p. m., defendant's chauffeur, named Ahlstrom, met the plaintiffs near defendant's cottage and took them for a ride in defendant's automobile. They motored to Wickford, and, while returning to Narragansett on the Tower Hill road, the automobile overturned and plaintiffs were injured.

The defense was that Ahlstrom. was not authorized to use the automobile for his own purposes.

Defendant testified that he employed Ahlstrom to act as chauffeur and butler; that he instructed him not to. use the automobile except on defendant's business, and that he was not to take the automobile from the garage without authority from defendant's wife, unless the nurse went out in the automobile, and that Ahlstrom never asked nor received permission to take the automobile for his own purposes.

Defendant and his wife were out of the state when the accident occurred, and their cottage was in charge of a nurse. The nurse left the cottage that evening for a few hours. She gave Ahlstrom instructions to stay at the cottage until she returned.

The cases were submitted to the jury on the issue whether Ahlstrom, at the time he took plaintiffs for the ride, was acting within the scope of his authority, either express or implied, or whether he was then using the automobile with the consent of the owner, express or implied. No exceptions were taken by either party to the instructions of the trial justice relative to this issue, and they became the law of the case.

Plaintiffs admit that they could not prove express consent by defendant to the use of his automobile by his chauffeur for his own purposes, and claim they knew of no limitation upon his authority to use the automobile.

Plaintiffs contend that, when a servant is employed for the special purpose of operating an automobile and is found operating it in the manner in which an automobile is usually operated, the presumption is that he is operating it in his master's service, and cites as authority Giblin v. Dudley Hardware Co., 44 R. I. 371, 117 A. 418; Callahan v. Weybosset Pure Food Market, 47 R. I. 361, 133 A. 442. In the Giblin Case, defendant produced no evidence to rebut the presumption that the driver of the truck was the servant of defendant and was acting within the scope of his employment. In the Callahan Case, defendant proved that the driver of its truck was not engaged upon its business at the time of the accident, and the plaintiff produced no evidence tending to prove the contrary. The court held that the presumption that the driver was engaged in the defendant's business became inoperative and of...