281 F. 439 | 1st Cir. | 1922
This was an action at law brought in one of the insular courts of Porto Rico for personal injuries sustained by the plaintiff, a boy 11 years old, through the negligent operation hy the defendants’ employe of an automobile truck owned' and used by the defendants in their business as a wholesale and retail grocery concern in San Juan. The truck was without due warning backed upon the plaintiff, playing in the street with other boys. His foot was crushed; gangrene followed, requiring the amputation of his'leg —whether below or above the knee is not on the record entirely clear. The trial court, sitting without a jury, found' for the plaintiff, and awarded damages of $17,000. On appeal to the Supreme Court of Porto Rico, the judgment was unanimously affirmed, but the damages were reduced to $12,000—-two of the five judges expressing the opinion that the award should not exceed $5,000.
In the record the defendants set forth six assignments of error, as follows:
*441 “(1) The court erred in deciding that there was not practically proof of contributory negligence on the part of plaintiff.
“(2) The court erred in deciding that the boy had no notice that the standing truck was likely to back, and that no warning was given to the boy that the truck was about to back.
“(3) The court erred in deciding that the weight of the proof was strictly in favor of the plaintiff.
“(4) The court erred in deciding that the judgment of 812,000 was a reasonable and just compensation, considering the circumstances of the ease and evidence produced.
“(5) The court erred in unduly applying and construing section 1803 of the Civil Code in force in Porto Rico.
“(6) The court erred in unduly applying and construing paragraphs 4 and 1 of section 1804 of the Civil Code in force in Porto Rico.”
But th'e defendants’ counsel in their brief and argument seek to add a seventh assignment (stated below) upon which they chiefly rely.
The six assignments, supra, may be briefly disposed of. The first three plainly present no question of law. Counsel for the defendants concede that there was sufficient evidence of the defendants’ negligence. The contention concerning contributory negligence presents a pure question of fact. There was, at most, but slightly conflicting evidence on that point. The Supreme Court unanimously agreed with “the court below that there was practically no proof of contributory negligence.”
“The liability referred to in this section shall cease when the persons mentioned therein prove that they employed all the diligence of a good father of a family to avoid the damage.”
But this is an affirmative defense, which the defendants herein neither pleaded nor proved. It is therefore not open. Arzuaga v. Ortiz (C. C. A.) 266 Fed. 449, 454; Panama Railroad Co. v. Toppin, 252 U. S. 308, 40 Sup. Ct. 319, 64 L. Ed. 582; Truyol v. West India Oil Co., 26 P. R. 321, 328, 329.
None of the assignments of error in the record can be sustained.
But, as noted above, the defendants now seek to add a seventh assignment, grounding it on the contention that the insular court erred in not sustaining a general demurrer, to the effect “that the complaint does not set forth facts sufficient to constitute a cause of action.”
This general demurrer was overruled by the District Court, but the
But, as in this case counsel on both sides have argued the point thus belatedly raised, and as we have reached conclusions adverse to the defendants, it will do no harm, and may possibly avoid further controversy, if we now state those conclusions.' That on such a record we deal with the point at all is not to be deemed a precedent to be followed.
'‘Tli at the owner of any motor vehicle shall be responsible for damages caused by the negligence of the operator or chauffeur while such owner is in the vehicle.”
On the principle, “inclusio unius, exclusio alterius,” counsel argue that no owner, not at the time in the vehicle, is liable for the negligence of his chauffeur. This proposition, if sound, might be raised by demurrer to the complaint, which does not allege that any of the defendants were in the vehicle at the time of the accident. This argument is to some degree grounded upon certain expressions of the Supreme Court in the case of Velez v. Llavina, 18 P. R. 634, as to the limits in Porto Rico of the doctrine of respondeat superior. In that case, decided in 1912, the issue was whether the owner of a motor vehicle, not used in the business of conveying passengers, was liable for the negligence of the operator. The majority of the court held
It is apparent from both opinions that the doctrine of respondeat superior has a somewhat narrower application in Porto Rico than in the United States. But the crucial question in that case was whether the defendant was using his automobile in “an enterprise or establishment” within the m.eaning of section 1804, post. There is nothing in the statute limiting the doctrine of respondeat superior to a public service enterprise, as distinguished from a grocery or other ordinary business concern. Rater opinions of that court so hold. Compare Truyol v. West India Oil Co., 26 P. R. 321, 327, 328; Morales v. Coraballo, 27 P. R. 544, 547; Allen v. International Express Co., 28 P. R. 448.
The applicable provisions of the Civil Code of Porto Rico are as follows:
“Sec. 1803. A person who by an act or omission causes damage to another when there is fault or negligence shall be obliged to repair the damage so done.
“Sec. 1804. The obligation imposed by the preceding section is demandable, not only for personal acts and omissions, but also for those of the persons for whom they should be responsible.
“The father, and on his death or incapacity the mother, is liable for the damages caused by the minors who live with them.
“Guardians are liable for the damages caused by minors or incapacitated persons who are under their authority and live with them.
“Owners or directors of an establishment or enterprise are equally liable for the damages caused by their employes in the service of the branches in which the latter may be employed or on account of their duties.
“The state is liable in this sense when it acts through a special agent, but not when the damage should have been caused by the official to whom properly it pertained to do the act performed, in which case the provisions of the preceding section shall be applicable.
“Finally, masters or directors of arts and trades are liable for the damages caused by their pupils or apprentices while they are under their custody.
“The liability referred to in this section shall cease when the persons mentioned therein prove that they employed all the diligence of a good father of a family to avoid the damage.”
The defendants at bar are, under paragraph 4 of section 1804, liable unless section 17 of the act of 1916 freed owners of motor trucks from all liability for negligence except when the owner himself is in the vehicle. Obviously, if the owner is a corporation, there would, under such construction and application, never be liability for the negligence of a chauffeur. No corporation rides in its own car. i
It would seem that the purpose embodied in section 17 by the Porto Rican Legislature was not to narrow, hut to extend, liability of owners of motor vehicles for the negligence of their chauffeurs, by making such owners, whether engaged in business enterprises or not, within the meaning of paragraph 4 of section 1804,' supra, liable, if present in the vehicle at the time of the negligently caused accident. Allen v. International Express Co., 28 P. R. 448, 453. But we need not now consider and determine the affirmative aspects of section 17; it is enough for present purposes to hold, negatively, that it does not, pro tanto, repeal or limit section 1804 of the Civil Code. The act of 1916
Our views accord with those already expressed by the Supreme Court of Porto Rico, which, of course, we should follow, unless of the opinion that they are plainly wrong. See Truyol v. West India Oil Co., 26 P. R. 321, 327, 328; Morales v. Caraballo, 27 P. R. 544; Allen v. International Express Co., 28 P. R. 448.
We think them plainly right on this point.
In the Allen Case, 28 P. R. at page 453, that court said “ * * * that there is no basis whatever for the theory of a repeal by implication” of paragraph 4 of section 1804, supra.
The defendants were carrying on “an enterprise or establishment” within the meaning of said paragraph 4, and were therefore liable for injuries caused by the negligence of their employé.
To what extent, if at all, in Porto Rico, the owner of a motor vehicle, used for exclusively personal or pleasure purposes and not for business, is liable for injuries caused by the negligence of his chauffeur, is a question not on this record presented.
The judgment of the Supreme Court of Porto Rico is affirmed, with costs.