Budwee v. New England Motors, Inc.

• Decision Date: 20 May 1965
• Docket Number: No. 10693,10693
• Citation: 210 A.2d 131,99 R.I. 663
• Parties: Gabriel BUDWEE v. NEW ENGLAND MOTORS, INC. Ex.
• Court: Rhode Island Supreme Court

Page 131

210 A.2d 131

99 R.I. 663

Gabriel BUDWEE v.NEW ENGLAND MOTORS, INC.

Ex. No. 10693.

Supreme Court of Rhode Island.

May 20, 1965.

William F. Reilly, Providence, for plaintiff.

Gunning & LaFazia, Bruce M. Selya, Edward L. Gnys, Jr., Providence, for defendant.

POWERS, Justice.

This is an action of trespass on the case for negligence brought to recover damages for personal injuries allegedly resulting from the negligent operation of an automobile owned by the defendant.It was tried to a superior court justice sitting with a jury and resulted in a verdict of $1,600 for the plaintiff.The trial justice granted the defendant's motion for a new trial unless the plaintiff remitted all of the verdict in excess of $1,000.The plaintiff duly filed such remittitur.The case is now before this court on the defendant's bill of exceptions in which it presses exceptions to the denial of its motion for a directed verdict, to certain evidentiary rulings, to the refusal of the trial justice to direct the jury as requested to certain instructions as given, to the denial of its motion that the case be passed, and to the denial of its motion for an unconditional new trial.

The record establishes that on June 27, 1960Leroy Garrett was in the employ of defendant corporation as a 'lot boy.'His duties consisted of moving cars around, off and on the lot, having them filled with gas, driving them to defendant's garage and such other incidentals as he might be directed to do.

The record further establishes that at or about 4:50 on the afternoon in question Garrett, while driving a motor vehicle easterly along Peace street in the city of Providence, struck plaintiff's car in the rear causing some property damage to both cars.No claim is made by plaintiff for property damage, but he testified that he was seated behind the wheel of his car in a parked position when the collision occurred and he sustained injuries to his back, neck and shoulder.

Over defendant's objections plaintiff was permitted to testify as to statements made by Garrett regarding the ownership of the car, Garrett's status as defendant's servant and his responsibility for the collision.The plaintiff further testified without objection that he went to defendant's premises on Garrett's assurances that defendant would accept responsibility and while there talked to several people including a police officer.He identified the car as a 1954 Pontiac bearing Rhode Island dealer registration plates 49P.

Doctor Matthew W. Rossi also testified for plaintiff relating in detail his diagnosis and treatment of plaintiff's injuries and testifying to the reasonableness of his bill which amounted to $230.

On cross-examination the doctor was asked about the mimeographed form used in his report to plaintiff's attorney.The question suggested that the doctor made a number of such forms for reports to attorneys.The doctor's reply was 'Or insurance reports.'

It appears that plaintiff's trial counsel was associated with Dr. Rossi's attorney and when counsel for defendant asked a series of questions designed to elaborate on this relationship plaintiff objected and was sustained by the trial justice.

It further appears that according to the testimony of defendant's manager on the day of the accident, Garrett appeared on the lot at about two o'clock in the afternoon giving the appearance of having been drinking.The manager testified that the assistant manager had informed him of this circumstance and, further, that the assistant manager had dismissed Garrett for the day.He admitted, however, that Garrett had not been discharged.

Continuing, the manager testified that later in the day he was informed that Garrett had been seen driving one of defendant's cars off the lot.Acting on this information complaint was made to the Providence police and an investigation ensued.Officer Thomas Leech was dispatched to defendant's premises where he was joined by Sergeant Walter J. Nevins.It appears from their testimony and that of Officer William J. Moran, as well as the police reports introduced by defendant, that dealer plates assigned to it were in the custody of Helen Reiner, defendant's employee; that Garrett had obtained the plates 49P from her; that this was normal procedure; and that shortly after the police arrived Garrett came in and reported that he had collided with another car while taking the Pontiac to get gasoline.

Garrett, the assistant manager Robert Moran, and Miss Reiner were not called as witnesses.Apart from the testimony of defendant's manager, all of the evidence relating to Garrett's use of the car comes from the testimony of plaintiff, the police officers and the information contained in their reports.The police testimony and reports disclose that no charges were preferred against Garrett by defendant, but the police did detain him when he returned to defendant's premises to report the accident and subsequently charged him with drunkenness.

The plaintiff charges defendant with liability by reason of G.L.1956, §§ 31-33-6 and 31-33-7, as amended, which provide as follows:

§ 31-33-6.'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, or lessee, or bailee, thereof, expressed or implied, the driver thereof, if other than such owner, or lessee, or bailee, shall in case of accident be deemed to be the agent of the owner, or lessee, or bailee, of such motor vehicle unless such driver shall have furnished proof of financial responsibility in the amount set forth in chapter [32 of this title], prior to such accident; and for the purposes of this section the term 'owner' shall include any person, firm, copartnership, association or corporation having the lawful possession or control of a motor vehicle under a written sale agreement.'

§ 31-33-7.'Evidence that at the time of such accident or collision the motor vehicle was registered in the name of the defendant shall be prima facie evidence that it was being operated with the consent of said defendant, and absence of such consent shall be an affirmative defense to be set up in the answer and proved by the defendant.'

The defendant makes no contention that the collision in question did not occur nor does it question the negligence of its employee Leroy Garrett.Rather it defended on the premise that the statutory liability could not be invoked by plaintiff in the circumstances of the instant case and that within the common-law liability of the master for acts of the servant, Garrett was not operating the car in the course of his duty but, to the contrary, was on an independent frolic.

It filed a special plea on the issue of consent as provided by § 31-33-7.Assuming that there was evidence from which the jury could find that § 31-33-6 was applicable defendant had the burden of proving its plea.

The defedant briefed and argued a total of twenty-seven exceptions, all but six of which are related to its contentions in support of the premised defense.These are exceptions 21, 22, 24, 25 and 26 which relate to the exclusion of certain testimony sought to be elicited in cross-examination and exception 27 which was taken to the denial of its motion that the case be passed.We shall consider these at the appropriate juncture.

For continuity and a logical sequence of argument defendant has arranged its exceptions, without regard to numerical sequence, into six specific issues and we shall so consider them.The first such issue predicated on exception 45 goes to the correctness of the trial justice's decision in denying defendant's motion for a directed verdict.

The defendant contends that its liability could be a question for the jury only if there were competent evidence tending to prove Garrett's negligence on a public highway in the operation of defendant's car with its consent.Unless these four elements are proven, it argues, defendant was entitled to a directed verdict, citing Hulton v. Phaneuf, 85 R.I. 406, 132 A.2d 85, for the proposition that plaintiff must prove every essential element.

We are in accord with the principle therein enunciated but that is of no assistance to defendant here.Although it contends that there was no evidence that Peace street is a public highway in the city of Providence and that the evidence demonstrates beyond any doubt that Garrett was operating without defendant's consent, such is not the fact.There is in the record available for the jury's consideration a report of the police investigation of the accident which states that the maximum speed limit on Peace street is 25 m. p. h. There are other references to the condition of the street and from these comments made in an official police report, a reasonable inference could be drawn that Peace street is a public highway.

On the question of consent defendant relies on what it calls the uncontradicted testimony of its manager that Garrett had taken the car without permission, and to its exceptions numbered 1 through 9, 13 and 14 and 33, 34, 35.These last three exceptions, however, were taken in the course of plaintiff's cross-examination of defendant's witnesses and require no discussion other than to note that they are without merit for the reason that the subject matter is in the record without objection.

Against the testimony of the manager that Garrett had been earlier dismissed for the day and drove the car off without permission, as evidenced by the complaint to the police prior to the accident, there is the testimony of the police officers and their report showing that Miss Reiner, defendant's responsible custodian, delivered the plates to Garrett on his statement that he had to take out a car to have it filled with gasoline.Significantly there is Sergeant Nevins' testimony that in his presence Garrett returned to defendant's office and reported that he had been involved in an accident while on this errand.It...