Callahan v. Weybosset Pure Food Mkt.

• Decision Date: 27 May 1926
• Docket Number: No. 6197.,6197.
• Citation: 133 A. 442
• Parties: CALLAHAN v. WEYBOSSET PURE FOOD MARKET.
• Court: Rhode Island Supreme Court

133 A. 442

CALLAHAN

v. WEYBOSSET PURE FOOD MARKET.

No. 6197.

Supreme Court of Rhode Island.

May 27, 1926.

Exceptions from Superior Court, Providence and Bristol Counties; Antonio A. Capotosto, Judge.

Action by Irene F. Callahan against the Weybosset Pure Food Market. Verdict for plaintiff. On defendant's exceptions. Exception sustained.

MeElroy & Fallon of Providence, for plaintiff.

Edwin C. Markel, of Philadelphia, Pa., and Quinn, Kernan & Quinn, of Providence, for defendant.

BARROWS, J. Action for negligence. Heard on exceptions of defendant to refusal of trial court to direct a verdict in its favor.

Plaintiff's automobile and defendant's automobile truck driven by one Brady, an employee of defendant, collided at the corner of Burgess and Cranston streets, in Providence, on Saturday, January 27, 1923, at 11 p. m. Apart from evidence relating to damages to plaintiff's car, the only testimony in the case came from plaintiff and her husband on the one side, and on the other from Brady, who had ceased to work for defendant at the time of the trial, and defendant's superintendent of trucks, Mr. Heck. There was evidence that at the time of the accident three men were riding on defendant's truck. Brady admitted the presence of only one, a young man named Gaskey. Plaintiff and her husband testified that there were "three baskets of groceries and some empty baskets" in the truck, and Brady denied the presence of any groceries. Both witnesses for defendant admitted that "special" orders were sometimes sent out for delivery after 10 p. m., prior to which time Brady usually completed his route. The testimony of Brady and of Heck, however, was that no groceries were being delivered as "specials" on the night in question. The jury found for the plaintiff in the sum of $198.30. If liable, defendant finds no fault with the verdict.

Defendant was not liable unless at the time of the accident Brady was acting within the scope of his employment. Colwell v. ætna Bottle & Stopper Co., 33 R. I. 531, 82 A. 388; Northup v. Robinson, 33 R. I. 496, 82 A. 392; Landry v. Richmond, 45 R. I. 504, at page 509, 124 A. 263, 32 A. L. R. 1500. At the close of defendant's evidence, it moved that a verdict be directed in its favor on the ground that there was no evidence to warrant the jury in finding that Brady at the time of the accident was engaged upon defendant's business. Archie v. Hudson-Essex Co., 45 R. I. 109, 120 A. 162. The trial court, deeming the present case distinguishable, denied the motion, and our question is whether there was any evidence of agency or from which agency could be inferred.

The duty of establishing her case, including proof that at the time of the accident Brady was acting within the scope of his employment, at all times rested upon plaintiff. Giblin v. Dudley Hardware Co., 44 R. I. '371, 117 A. 418. This court there held, following Berger v. Watjen (R. I.) 106 A. 740, and Burns v. Brightman, 44 R. I. 316, 117 A. 26, that when plaintiff had proved ownership of car by defendant and operation by his employee, a prima facie presumption arose that the latter was engaged upon defendant's business at the time of the accident. This presumption, however, is operative only in the absence of any evidence for defendant. It is not one from which an inference of fact may logically be deduced. It is merely a rule of law. Thayer, Preliminary Treatise on Evidence, p. 539, at 545, says:

"It merely applies or attaches to the circumstances when proved and is not deduced from them."

Instead of being evidence of the fact of agency, the presumption furnishes plaintiff an excuse for failing to offer evidence thereof. Agency is an assumption employed to promote justice between litigants in the absence of evidence to the contrary. The consequences of the presumption are merely procedural. When met by defendant's testimony that the truck was not being operated upon the business of defendant, but was being used by the driver upon an errand of his own, no assumption of agency was warranted merely from ownership and operation. The presumption had become inoperative and of no more force than as if it never had existed. Thereafter plaintiff to succeed was bound either to discredit defendant's evidence or to produce evidence of agency or evidence from which it could be inferred logically. Archie v. Hudson-Essex Co., supra; Oolangelo v. Colangelo, 46 R. I. 138, 125 A. 285. Failure to do so on the plaintiff's part would require the direction of a verdict for defendant.

We thus reach the questions whether defenda...