Cappello v. Aero Mayflower Transit Co.

• Decision Date: 01 November 1949
• Docket Number: No. 1090.,1090.
• Citation: 68 A.2d 913
• Court: Vermont Supreme Court
• Parties: CAPPELLO v. AERO MAYFLOWER TRANSIT CO.

68 A.2d 913

CAPPELLO

v.AERO MAYFLOWER TRANSIT CO.

No. 1090.

Supreme Court of Vermont.

Nov. 1, 1949.

Action by Roger W. Cappello, administrator of the estate of Jessica E. Cappello, against the Aero Mayflower Transit Company for damages resulting from a motor vehicle accident, wherein the only evidence as to ownership of the truck or that its operator was engaged in defendant's service was the defendant's name upon it and fact that rruck was being driven upon the highway.

At the close of plaintiff's evidence, the County Court for Rutland County, Walter H. Cleary, P. J., granted defendant's motion for directed verdict and plaintiff excepted.

The Supreme Court, Sherburne, C. J., reversed the judgment, holding that the aforementioned facts were sufficient to carry the question of defendant's ownership of the truck to the jury.

Bloomer & Bloomer, Rutland, for plaintiff.

Ryan, Smith & Carbine, Rutland, for defendant.

Before SHERBURNE, C. J., and JEFFORDS, ADAMS and BLACKMER, JJ., and HULBURD, Superior J.

SHERBURNE, Chief Justice.

This is an action for damages resulting from a motor vehicle accident. The accident happened on the highway a little south of Brandon village on June 6, 1946, when the plaintiff's intestate, who was driving a sedan, was attempting to pass a truck, consisting of a tractor and trailer van. When she was about half way past the van the tractor pulled over to the left and crowded her off the road. The only evidence as to the ownership of the truck, or that its operator was then engaged in the defendant's service, was the name ‘Aero Mayflower Transit Company’ upon it. At the close of the plaintiff's evidence the court granted defendant's motion for a directed verdict, and the plaintiff excepted.

In this Court the defendant does not question the sufficiency of the evidence to show that the accident resulted from the negligence of the truck driver, and that plaintiff's intestate was free from contributory negligence. The only issue here is whether the showing of the defendant's name upon the truck was sufficient, at the close of the plaintiff's evidence, to take the plaintiff to the jury on the liability of the defendant.

According to the annotations in 42 A.L.R. 898-922, 74 A.L.R. 951-968, and 96 A.L.R. 634-645, a majority of our state courts take the view that, in an action for injuries from being struck by an automobile, proof that the automobile was owned by the defendant at the time of the accident makes out a prima facie case that the operator of the automobile was engaged in the defendant's service, or, in other words, that a rebuttable presumption, or an inference, arises, from proof of the defendant's ownership of the automobile, that at the time of the injury the automobile was being operated by him, or by his servant or agent under circumstances which would render him liable under the doctrine of respondeat superior. The following are some of the cases so holding: Giblin v. Dudley Hardware Co., 44 R.I. 371, 117 A. 418; St. Andrassy v. Mooney, 262 N.Y. 368, 186 N.E. 867; Ferris v. Sterling, 214 N.Y. 249, 108 N.E. 406, Ann.Cas.1916D, 1161; Dennery v. Great Atlantic & Pacific Tea Co., 82 N.J.L. 517, 81 A. 861, 39 L.R.A.,N.S., 574; Mehan v. Walker, 97 N.J.L. 304, 117 A. 609; Vonderhorst Brewing Co. v. Amrhine, 98 Md. 406, 56 A. 833; Pennsylvania R. Co. v. Lord, 159 Md. 518, 151 A. 400; Alabama Power Co. v. McGehee, 228 Ala. 505, 154 So. 105; Landry V. Oversen, 187 Iowa 284, 174 N.W. 255; Ahlberg v. Griggs, 158 Minn. 11, 196 N.W. 652; Philip v. Schlager, 214 Wis. 370, 253 N.W. 394; Judson v. Bee Hive Auto Service Co., 136 Or. 1, 5, 294 P. 588, 297 P. 1050, 74 A.L.R. 944.

The reason given by the courts in so holding is to the effect that the owner may well be assumed to know how and by whom his property is being used; and if he denies that the automobile was being operated by or for him, it is not too much to exact from him a showing of the facts claimed to sustain such denial. The rule proceeds upon the theory that the facts are peculiarly within the knowledge of the defendant, who can easily furnish the necessary evidence to show that the automobile was not being used for him, if such is the fact; and though this rule occasionally works a hardship upon the defendant, a less liberal rule would frequently result in hardship to the plaintiff.

In Dennery v. Great Atlantic & Pacific Tea Co., supra, evidence that the wagon, which ran over the plaintiff, was marked with defendant's name was held sufficient to justify the inference that the defendant was its owner, and such inference established prima facie that the defendant was in possession and control of the wagon by the driver, its servant. In Giblin v. Dudley Hardware Co., supra, the defendant had the motor truck duly registered, and the distinguishing number assigned thereto displayed upon it at the time of the accident. No notice of a transfer of defendant's interest in the truck had been filed. Held that under these circumstances the plaintiff could rely upon the presumption that the requirements of the law had been complied with, and that the defendant...