Collier v. Travelers Ins. Co.

• Decision Date: 19 February 1964
• Docket Number: No. 10485,10485
• Citation: 197 A.2d 493,97 R.I. 315
• Parties: Lawrence E. COLLIER v. The TRAVELERS INSURANCE COMPANY. Ex.
• Court: Rhode Island Supreme Court

Page 493

197 A.2d 493

97 R.I. 315

Lawrence E. COLLIER v. The TRAVELERS INSURANCE COMPANY.

Ex. No. 10485.

Supreme Court of Rhode Island.

Feb. 19, 1964.

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

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

POWERS, Justice.

This action of trespass on the case was brought to recover damages for personal injuries allegedly resulting from the negligent operation of a motor vehicle by the defendant's insured. The case was tried to a superior court justice sitting with a jury and resulted in a verdict for the plaintiff. It is before us on the defendant's bill of exceptions. In the view we take of the case, however, we deem it necessary to consider only those exceptions numbered sixteen to nineteen which are to certain portions of the trial justice's instructions to the jury.

The record establishes that on March 20, 1958 at or about 11 p. m. plaintiff was traveling southerly in the outside lane on South Washington street, also known as route 1, in North Attleboro, Massachusetts. It was snowing, visibility was poor, and there was some accumulation, all of which resulted in hazardous driving conditions.

The plaintiff testified that he was traveling approximately 20 miles an hour approaching the Red Rock motel when, rounding a curve north of the motel, he first observed a car as far south of the motel as he was north coming from the opposite direction; that it turned in front of him at a point opposite the entrance to the motel; and that, although he applied his brakes, his car skidded into the other broadside along the right front fender and door. At the moment of impact the front wheels of the other car were touching the gravel edge of the lane in which plaintiff was traveling.

It appears that the car struck by plaintiff was owned by and registered to Julia A. Tavares, but operated by a Beatrice L. Lessard who, plaintiff alleged, described herself as Beatrice L. Lessaro. In this regard he stated that the operator gave him a paper, introduced as an exhibit, on which was hand printed the name Beatrice L. Lessaro, residing at 300 Lonsdale Avenue, Pawtucket, Rhode Island. The address, but not the name Lessaro, as thus given, is corroborated by the report of the North Attleboro, Massachusetts, police, officer John J. McCarthy of that department, and the testimony as it appears in the deposition of the operator. It is undisputed that at the time plaintiff commenced his action she was no longer residing in Rhode Island, but was, however, working at Cable Electric Products in Providence where she was also employed at the time of the accident.

Furthermore, plaintiff testified that prior to his commencement of an action against Beatrice L. Lessaro, he had learned either from the owner of the car or the instant defendant that there was some likelihood that the name of the operator was Beatrice Lessard. Indeed, there is in the record a statement made by plaintiff some eight months prior to the commencement of suit against Beatrice L. Lessaro, alias Jane Doe, in which the operator was referred to by name as Lessard.

The plaintiff was operating a motor vehicle furnished for his use by his employer and so sustained no property damage for which he could recover, assuming negligence on the part of the other operator. Apparently he did sustain personal injuries and on February 18, 1959, commenced suit against Beatrice L. Lessaro, alias Jane Doe, by a writ of summons in an action of trespass on the case. No reference to the defendant's address appears on the writ, nor does it appear that any was given to the sheriff, there being a complete absence of testimony in this regard. In any event, the writ was returned 'non est inventus' and, pursuant to the provisions of G.L.1956, § 27-7-2, an action was commenced against defendant at bar. By the terms of a policy of insurance issued to the registered owner, defendant made itself liable for the negligence of one operating the car thus insured if operated with the consent of the insured, the policy referring to such an operator as an insured. That the operator was so authorized does not appear to have been questioned by defendant.

The provisions of § 27-7-2 on which the present action is predicated are as follows:

'Such injured party, or, in the event of his death, the party entitled to sue therefor, in his suit against the insured, shall not join the insurer as a defendant. If, however, the officer serving any process against the insured shall return said process 'non est inventus,' the said injured party, and in the event of his death, the party entitled to sue therefor, may proceed directly against the insurer. Said injured party, or, in the event of his death, the party entitled to sue therefor, after having obtained judgment against the insured alone, may proceed on said judgment in a separate action against said insurer; provided, however, that payment in whole or in part of such liability by either the insured or the insurer shall, to the extent thereof, be a bar to recovery against the other of the amount so paid.'

The trial justice in his charge to the jury instructed them in substance, and correctly that in order for plaintiff to prevail against the instant defendant he had the obligation to satisfy them that the writ sued out agaisnt Beatrice L. 'Lessaro,' and which had been returned 'non est inventus,' had been issued against the operator of the car under a name which she had adopted and by which she had identified herself to him. He made it clear that unless they were so satisfied, the present action could not be maintained against the instant defendant, stating that a writ which had been issued against the wrong person and returned 'non est inventus' would not satisfy the requirements of the statute.

He further charged them, however, that if the operator's true name was 'Lessard' and not 'Lessaro' but they should find from all the evidence that she had been in the habit of referring to herself as Beatrice L. 'Lessaro' and had so identified herself to plaintiff, a writ sued out against Beatrice L. 'Lessaro,' alias Jane Doe, would meet the requirements of the statute and if the service thereof were returned 'non est inventus,' plaintiff could properly bring suit directly against the defendant insurer.

Continuing, he further advised the jury that at common law a person might use two or more names, and could be held responsible under any of such names by one to whom he owed a legal obligation and to whom he was known by the name under which he was sued.

To these instructions, as given in full, and which for the purpose of brevity we have summarized, defendant took four exceptions. It contends in support thereof that under the instructions as given the jury could believe, and apparently did believe, that if they found the operator had not intentionally identified herself as Beatrice L. 'Lessaro' but rather had inadvertently given that name to plaintiff, he would have been justified in bringing suit against her in the first instance under the name thus used inadvertently. Moreover, it argues, that there was no evidence that Beatrice L. 'Lessard' was in the habit of using the name 'Lessaro,' and absent such evidence this phase of instructions to the jury constituted reversible error.

In our judgment there is merit in this latter contention. There is no evidence that she had ever identified or referred to herself by the surname 'Lessaro' except in the single instance that the same appears on the hand-printed paper which she purportedly gave to plaintiff at the time of the accident.

Further, although we do not hold that the trial justice was in error when he instructed the jury that a person may be liable under more than one name if one of such names is that by which he is known to plaintiff, we are of the opinion that the instructions were lacking in a vital particular. The question before the jury was not whether on the weight of the evidence relating to the operator's identification of herself as Beatrice L. 'Lessaro,' suit could be successfully maintained against Beatrice L. 'Lessard' on a writ issued against her under the surname 'Lessaro.' Rather, it was whether in the light of all of the evidence the jury could find that plaintiff had made an effort to obtain service against the operator in the good faith to which we referred in Maczuga v. American Universal Ins. Co., 92 R.I. 76, 166 A.2d 227.

There the plaintiff brought suit directly against the insurer after a writ issued against the operator had been returned 'non est inventus.' The defendant insurer...