186 A. 21 | R.I. | 1936
This is an action of trespass on the case for negligence, and is now before the court on the plaintiff's exception to the action of the superior court in sustaining a demurrer to the declaration.
The allegations in the declaration, which is in two counts, set out in substance that, at the time of the accident referred to, the plaintiff was the owner of a certain automobile and was riding therein in the rear seat as a passenger, in the exercise of due care, such automobile not being under his care and direction. The defendant, it is alleged, was employed by the plaintiff as his chauffeur, and at the time in question the automobile was under his care and direction. The declaration then further alleges that by reason of the *414 negligent operation of such automobile by the defendant in certain specified respects, a collision occurred between the automobile and a large motor truck, resulting in personal injuries to the plaintiff and damage to his automobile.
To this declaration the defendant demurred on the following grounds; first, that the declaration failed to set out a cause of action; second, that the declaration alleged that at the time and place of the accident the plaintiff owned the automobile, was riding therein, and was employing the defendant as his chauffeur; and third, that the declaration did not show that the automobile was not then and there being operated for the plaintiff's purpose and in his behalf.
The defendant contends that, under the facts set out in the declaration, he should be held liable only when acting wantonly or outside the scope of his employment.
He does not seriously question the existence of the recognized rule, that an agent or an employee is liable to his principal or to his employer for acts of negligence causing damage to such principal or employer, whether such damage be direct or brought about by compensation the latter has been obliged to make to some third person for injuries sustained by him arising from such negligent acts. Page v. Welles,
The defendant, however, urges that the above principle should not be held to apply to domestic servants or employees, that they should constitute an exception to the general rule and that he, as the plaintiff's chauffeur, falls within this category. In support of this contention, the defendant points out the close relationship which often exists between an employer and his domestic servants, more so than between the employer and other types of agents or employees, and also the complete oversight and control usually exercised by the employer under such circumstances. *415
In our judgment, the defendant's claim in this connection is not sound. While it is possibly the fact, as he states, that there is a lack of reported cases of this kind, brought by an employer against his domestic servant, this situation may well be due to practical considerations, or circumstances of a like nature. In our opinion the right of action exists. No authorities have been brought to our attention which support the proposition that, in an action of this type, a domestic servant is not liable to his employer for ordinary negligence, and we find no holding that an employer assumes the risk of such negligence. The nature of the relationship alone between an employer and a domestic servant does not warrant the creation of such an exception to the general rule.
The defendant further argues that it is against public policy to permit the plaintiff to maintain this action and cites the case of Matarese v. Matarese,
In our judgment, the question of joint enterprise between the plaintiff and the defendant is not involved in the instant case on the facts alleged in the declaration. This subject is fully dealt with in the cases of Lucey v. Hope Sons,
Reported cases precisely similar to the instant case are apparently rare. None has been brought to our attention by the defendant. The plaintiff has cited Donohue v. Jette,
In Ledgerwood v. Ledgerwood,
We are in general accord with the decision of the court inLedgerwood v. Ledgerwood, supra, that, in a suit for negligent operation by the owner against his chauffeur, the mere presence of the owner of the automobile in the car at the *418
time of the accident does not raise any presumption of law that the owner was guilty of contributory negligence, nor does it cause the operator's negligence, if any, to be imputed to the owner so as to prevent the maintaining of such an action. In our judgment, under such circumstances the actual negligence of the respective parties is in question, and is to be determined from the facts presented. If the owner of a motor vehicle, operated by another, is in it at the time of the occurrence involved, and retains the right and power to control the manner in which it is to be driven, then the issue is raised as to whether in an action brought by the owner against the driver of the vehicle, for improper operation, such owner is guilty of any negligent act of omission or commission which contributes to his own injury. Such issue is one of fact, however, and must be determined from the evidence adduced. See Wheeler v. Darmochwat,
The defendant calls to our attention the doctrine that ordinarily the presence of the owner of the motor vehicle in the car raises a presumption that the driver is acting within the scope of his master's business, that the owner has the control of the operation of the vehicle and that the driver's negligence is to be imputed to such owner. 7-8 Huddy Cyc. of Automobile Law (9th ed.) 243; Baker v. Maseeh,
Finally, the defendant contends that the plaintiff is not entitled to maintain this action because the latter's position, as disclosed by his declaration, is repugnant to a position previously taken by him in a case against another person, growing out of the same accident. Whatever may be the *419 extent of the doctrine of judicial notice, we are of the opinion that the point urged is not raised by the demurrer now before us. Possibly the question may arise in some form during the course of the trial. At the present time we deem it proper to express no opinion upon it.
In our judgment, therefore, the declaration herein states a case, and the action of the superior court in sustaining the defendant's demurrer thereto was erroneous.
The plaintiff's exception is sustained, and the case is remitted to the superior court for further proceedings.