Avedesian v. Butler Auto Sales, Inc.

• Decision Date: 15 May 1961
• Docket Number: Nos. 10047,10048,s. 10047
• Citation: 93 R.I. 4,170 A.2d 604
• Parties: Susan AVEDESIAN v. BUTLER AUTO SALES, INC. Edward AVEDESIAN v. BUTLER AUTO SALES, INC. Ex.
• Court: Rhode Island Supreme Court

Page 604

170 A.2d 604

93 R.I. 4

Susan AVEDESIAN v. BUTLER AUTO SALES, INC.

Edward AVEDESIAN v. BUTLER AUTO SALES, INC.

Ex. Nos. 10047, 10048.

Supreme Court of Rhode Island.

May 15, 1961.

Aram A. Arabian, John K. Najarian, Providence, for plaintiffs.

Boss, Conlan, Keenan, Bulman & Rice, John T. Keenan, Providence, for defendant.

ROBERTS, Justice.

These actions of trespass on the case for negligence were brought by a husband and wife to recover damages that arose out of injuries sustained by the plaintiff wife when a motor vehicle being operated by her was in collision with another motor vehicle alleged to be owned by the defendant. The cases were tried together before a justice of the superior court sitting with a jury, which returned verdicts for the plaintiffs, that for plaintiff wife being in the amount of $12,000 and that for the plaintiff husband $3,000. Thereafter the trial justice denied the defendant's motion for a new trial in the case of the plaintiff husband and in the case of the plaintiff wife granted its motion for a new trial on the issue of damages only unless she filed a remittitur of all of the verdict in excess of $7,000. The remittitur was not filed. The defendant has prosecuted a bill of exceptions to this court in each case and has included therein its exceptions to the denial of its motions for a directed verdict and an unconditional new trial and its requests for special findings by the jury as well as certain of its exceptions to evidentiary rulings and to portions of the charge.

The facts concerning the collision are not in dispute. The plaintiff wife on May 5, 1956 was operating an automobile owned by plaintiff husband along High Service avenue in the town of North Providence. At that time another motor vehicle being operated along that highway in the opposite direction crossed the road and collided head on with the car being operated by plaintiff wife. It is not disputed that the other car was a 1939 model Ford, hereinafter referred to as the 1939 Ford, or that attached thereto was a dealer's plate, so called, bearing the inscription 18 C. It is conceded that 18 is the distinguishing number issued to defendant as a dealer in motor vehicles pursuant to G.L.1956, § 31-3-23 et seq., and that plate 18 C is one of a number of plates issued to defendant thereunder and for the use of which it is responsible under the provisions of G.L.1956, § 31-3-27. The operator of the 1939 Ford which bore said dealer's plate was identified as James Addis O'Reilly, hereinafter referred to as O'Reilly, who is not, it is conceded, an employee of defendant.

Neither is it in dispute that in May 1956 Walter H. Kierce was employed by defendant as a car salesman and at that time was negotiating for the sale of a 1950 Chevrolet owned by defendant to George W. Slade. It further appears that Slade agreed to purchase the Chevrolet and that as a result thereof Kierce delivered the car to Slade's home at about nine o'clock on the evening of May 4. Upon delivering the Chevrolet, Kierce removed the dealer's plates 18 C therefrom and attached them to the 1939 Ford owned by Slade, which he then drove to his own home in North Providence. Mr. Kierce testified that on the following morning, May 5, his wife, using the 1939 Ford with the dealer's plates still attached thereto, drove him to his place of employment at defendant's showrooms and, after leaving him there, continued to use the Ford as she did some shopping for the family. She then returned to her home where she left the car standing in the driveway. It is not disputed that later that afternoon O'Reilly, who is a stepson of Kierce and makes his home with him, took the car from the driveway and shortly thereafter collided with plaintiff's car.

Mr. Kierce testified that he had taken the 1939 Ford in trade on the purchase price of the Chevrolet sold to Slade on May 4 and that he did so with the intention of delivering it to defendant's used car lot but, because it would be closed at that hour, he drove it home. When his wife drove him to work in the 1939 Ford on the morning of May 5, they had planned that she would use it to do some shopping and would call for him at defendant's plant about five o'clock that afternoon when he would leave the 1939 Ford with defendant and return home using a car to which he referred as a 'demonstrator.' Kierce testified that dealer's plates ordinarily were used by him whenever he had to transport or deliver a car and that he and other salesmen were frequently permitted to use cars with these dealer's plates attached thereto for their personal business. In the course of his testimony he denied that he had taken the 1939 Ford from Slade with the intention of retaining it as his own property or that he had ever stated that he had purchased the 1939 Ford from another motor vehicle dealer.

The defendant's used-car manager, Richard S. Douglas, testified that he had in that capacity approved the transaction in which a 1950 Chevrolet was sold to Slade and that Kierce had never informed him that Slade wanted to trade his car in the deal. According to Douglas, defendant's employees were never given permission to use cars with dealer's plates attached thereto for personal matters. He also testified that on May 5, shortly after the accident, Kierce had told him that he owned the 1939 Ford, having purchased it from another dealer in motor vehicles.

There is also some documentary evidence in the record which was adduced for the purpose of showing the nature and terms of the transaction under consideration. These included two of defendant's purchase order forms, which vary slightly in the details as to price. On the face of both of these purchase order forms there is a handwritten notation 'No Trade.' It also appears from the face of one of these order forms that Slade as the purchaser had signed several warranties with reference to a car that was being traded in. Also included in the documentary evidence is an application form on the reverse side of the registration certificate requesting the registry of motor vehicles to transfer the registration from a 1939 Ford to a 1950 Chevrolet, which was executed on May 4 by Mr Slade. On the face of this application Slade as the applicant stated that he disposed of the 1939 Ford by selling it to defendant. The application form bears some marks by which it appears that some writing thereon had been obliterated. An employee of the registry testified that upon an inquiry made sometime after May 5 she had examined this form and that it then stated thereon that the Ford had been sold to Kierce. It was her testimony that sometime thereafter the form had been changed by the obliteration of the name of Kierce and the insertion of the name of defendant.

We shall consider first the exception of defendant to the denial in each case of its motion for a directed verdict. The defendant contends that these rulings were erroneous because there is in the record no evidence from which the jury would be warranted in finding either that defendant was the owner of the motor vehicle being operated by O'Reilly at the time of the accident or that defendant had consented to its operation by O'Reilly at that time. In other words, defendant is contending that in the state of the evidence here the jury could not properly find either a common-law agency between defendant and the operator or the agency contemplated in G.L.1956, § 31-31-3. In the state of the evidence here the common-law relation of principal and agent could not be established, but the circumstances are such that liability may be imposed upon defendant by reason of the statutory agency above referred to.

The legislature had recognized the difficulty of establishing the common-law relationship of principal and agent in most of these cases and provided for the statutory agency in order to give more adequate security against financial loss to those injured in motor vehicle accidents where one of the vehicles involved was operated by a person other than the owner. Hill v. Cabral, 62 R.I. 11, 2 A.2d 482, 121 A.L.R. 1072. Said § 31-31-3 reads in pertment part: 'Whenever any motor vehicle shall be used, operated, or caused to be operated upon any public highway of this state with the consent of the owner * * * thereof, express or implied, the operator thereof, if other than such owner, * * * shall in case of accident be deemed to be the agent of the owner * * *.' As defendant contends in the instant cases, this statute is applicable only if the defendant is the owner of the vehicle involved, and because of an alleged absence of any evidence in the record from which the jury could find that defendant did own the motor vehicle here involved, it has moved for a directed verdict in each case.

What then constitutes one an 'owner' within the meaning of that word as it is used in the statute? In § 31-31-2 an 'owner' is defined as one who has legal title to an automobile or a right to immediate possession under a conditional sale or a chattel mortgage. In the pertinent section, § 31-31-3, it is provided that the term 'owner' shall include any person who shall have 'the lawful possession or control of a motor vehicle under a written sale agreement.' It is clear that the legislature intended to give to the word 'owner' an expanded meaning so as to include therein those who, although they are without legal title to an automobile, do have lawful possession and control thereof, as for example the vendee under a conditional sale. It is our view then that the word 'owner' as it is used in § 31-31-3 is to be given a broad, comprehensive meaning consistent with the purpose of the statute and includes those who by reason of being lawfully in possession of a motor vehicle may give a valid consent to another to use or operate the car.

In Lennon v. L. A. W. Acceptance Corp., 48 R.I. 363, 138 A. 215, this court considered the question whether under a conditional sale of an...