F. D. McKendall Lumber Co. v. Ramieri, 9608

• Court: Rhode Island Supreme Court
• Writing for the Court: ROBERTS
• Citation: F. D. McKendall Lumber Co. v. Ramieri, 85 R.I. 92, 126 A.2d 560 (R.I. 1956)
• Decision Date: 09 November 1956
• Docket Number: No. 9608,9608
• Parties: F. D. McKENDALL LUMBER CO. v. Delia RAMIERI. Ex.

Page 560

126 A.2d 560

85 R.I. 92

F. D. McKENDALL LUMBER CO. v. Delia RAMIERI.

Ex. No. 9608.

Supreme Court of Rhode Island.

Nov. 9, 1956.

Higgins & McCabe, Providence, for plaintiff.

Kirshenbaum & Kirshenbaum, Isidore Kirshenbaum, Providence, for defendant.

ROBERTS, Justice.

This is an action of trespass on the case for negligence to recover for damages to the plaintiff's motor vehicle resulting from a collision with another automobile which occurred in the city of Cranston on October 1, 1949. The case was tried before a justice of the superior court sitting without a jury and a decision was rendered for the plaintiff in the amount of $980.09. It is before us on the defendant's bill of exceptions to such decision and to other rulings during the trial.

It appears from substantially undisputed evidence that on October 1, 1949 defendant, who resides on Laban street in the city of Providence, gave permission to her son, Theodore Ramieri, to use her automobile to go to a nearby grocery store to purchase a loaf of bread. It further appears that the son, after procuring the bread, did not return immediately but went to the home of a friend, Joseph Rowan. Rowan persuaded Theodore to drive to the home of two girls in another section of Providence so that they might all go for a ride. While Ramieri was driving the car they went to a place in the town of Coventry and remained at this resort for some time. They later departed for home and Rowan drove the car with Ramieri's permission while he rode in the rear seat with one of the girls.

Shortly before midnight while Rowan was still operating the automobile it was involved in a collision with a car owned by the plaintiff corporation and operated by Frank D. McKendall, Jr. At the conclusion of the trial the parties agreed that if the defendant had testified, her testimony would have been that she gave her consent for the use of the car by her son to do the errand specified; that she did not know her son was going to visit Rowan and go out with the girls; and that she did not know he would give Rowan permission to operate the vehicle. It is not disputed that at the time of the collision Rowan was driving the car with Theodore's permission.

We have examined the rulings complained of under exceptions numbered 4, 5 and 6 relied upon by defendant. These relate to rulings of the trial justice sustaining objections made by counsel for plaintiff to certain questions asked by counsel for defendant during cross-examination of the witness Theodore Ramieri. From our examination exception 6 does not appear in the record to have been noted in behalf of defendant and therefore need not be considered. With respect to exceptions numbered 4 and 5, we are of the opinion that no reversible error was committed in either of the rulings complained of thereunder. All these exceptions are overruled.

The defendant contends under exception numbered 9 that the trial justice was in error when he held that Rowan, while operating defendant's motor vehicle, was her statutory agent under the provisions of General Laws 1938, chapter 98, sec. 10, as amended by Public Laws 1940, chap. 867. The pertinent portion of this statute reads as follows:

'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 * * * expressed or implied, the operator thereof, if other than such owner * * * shall in case of accident, be deemed to be the agent of the owner * * *. 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 defence to be set up in the answer and proved by the defendant.'

The defendant filed special pleas under the statute which raise as an affirmative defense the absence of consent on her part to Rowan's...