Gemma v. Rotondo

• Court: Rhode Island Supreme Court
• Writing for the Court: CONDON, Justice
• Citation: Gemma v. Rotondo, 62 R.I. 293, 5 A.2d 297 (R.I. 1939)
• Decision Date: 01 April 1939
• Docket Number: No. 8032.,8032.
• Parties: GEMMA v. ROTONDO.

5 A.2d 297

GEMMA

v. ROTONDO.

No. 8032.

Supreme Court of Rhode Island.

April 1, 1939.

Exceptions from Superior Court, Providence and Bristol Counties; Walter Curry, Judge.

Action of trespass on the case by Nilda Gemma against Michael Rotondo for injuries sustained while riding in a motortruck belonging to defendant and operated by Albert Scunzio. Verdict for the plaintiff and defendant was granted new trial and to review refusal to direct verdict defendant brings exception.

Exception overruled and case remitted for new trial.

Arthur Novogroski and Wilfrid E. McKenna, both of Providence, for plaintiff.

William A. Gunning, of Providence, for defendant.

CONDON, Justice.

This is an action of trespass on the case for negligence which was tried in the superior court and resulted in a verdict for the plaintiff. It is here on the defendant's exception to the ruling of the trial justice denying his motion for a directed verdict.

The plaintiff was injured while riding in a motor truck belonging to the defendant and operated by Albert Scunzio. Scunzio was operating the truck with the consent of the defendant at the time of the accident and had permitted the plaintiff, at the request of her husband, Nicholas Gemma, to ride therein without the knowledge of the defendant.

The plaintiff proved at the trial that the truck was registered to the defendant as owner. She also introduced other evidence bearing on the issue of the defendant's liability generally and particularly with reference to his responsibility for the conduct of Scunzio, the driver of his truck. The defendant contends that the evidence does not show that there was an issue of fact to be submitted to the jury for their determination but, on the contrary, that it clearly shows, as a matter of law, that he was not responsible for the conduct of the driver. This contention is the real ground of his exception to the ruling of the trial justice denying his motion for a directed verdict.

The plaintiff brought suit against the defendant and, in her declaration, charged him with four specific acts of negligence of his agent or servant, Scunzio. Defendant pleaded the general issue and, in addition, set up in an "answer" the affirmative defense that the truck "was not being operated by and under the control of a person for whose conduct the defendant was legally responsible."

Although the plaintiff introduced evidence of the conditions under which Scunzio was operating the defendant's truck at the time of the accident and under which she was riding as a passenger therein, she contends that, under Public Laws 1929, chapter 1429, sec. 10, as amended by Public Laws 1933, chapter 2046, section 1, upon proof by her of the registration of the truck in the name of the defendant as owner she had made out a prima facie case of the defendant's responsibility for the conduct of Scunzio and that it then became the defendant's duty to prove the contrary by a fair preponderance of the evidence. The defendant urges that the statute sets up a mere presumption which was dissipated by his evidence and was thereafter of no further force or effect, and that, in any event, it does not make proof of defendant's registration prima facie evidence of his responsibility for the act of Scunzio in inviting or permitting the plaintiff to ride in the truck. This fact, he argues, must still be proved affirmatively by the plaintiff.

There is no question that Scunzio was driving the defendant's truck with the latter's consent at the time of the accident, but the question is in what capacity he was driving the truck. Was he the servant or agent of the defendant and if so was it within the scope of his agency or employment to permit the plaintiff to ride in the truck?

The statute declares that "evidence that at the time of such accident or collision it [the motor vehicle] was registered in the name of the defendant as owner shall be prima facie evidence that it was then being operated by and under the control of a person for whose conduct the defendant was wholly responsible * * *." Therefore, in the instant case, upon proof of the registration of the truck to the defendant as owner, it was established prima facie that Scunzio was operating the truck for the defendant with full authority to bind the defendant. The defendant opposed this prima facie evidence with testimony that he did not give authority to Scunzio to allow the plaintiff to ride in the truck and that he did not know her or that there was any occasion for any one to accompany Scunzio except Gemma. This evidence raised a conflict on the question of the defendant's responsibility for the conduct of Scunzio, in allowing the plaintiff to ride in the truck. Hence, it was impossible to say as a matter of law that the defendant was not wholly responsible for the conduct of Scunzio. That was a question to be decided by the jury on all the evidence, including the prima facie evidence, under proper instructions by the court.

But the defendant has argued that such a view is predicated on an erroneous construction of the statute. He urges that the statute sets up a mere presumption in favor of the plaintiff by the use of the words "prima facie evidence", and that this presumption is dissipated by the defendant's evidence. In other words, he contends that the statute merely shifts the burden of going forward with the evidence and that it does not shift the burden of proof. In support of his contention, he cites Hartley v. Johnson, 54 R.I. 477, 175 A. 653. Recently, in Hill v. Cabral, 2 A.2d 482, 484, we took occasion to comment on that case and also to touch upon a contention very like the above, saying: "The prima facie evidence created by the statute raises more than a mere presumption." And we showed the distinction between a presumption and prima facie evidence.

However, in the Hill case we were dealing only with the question whether the defendant had consented to the use of her motor vehicle by the driver, while here we are called upon to decide what effect the statute has on questions of agency raised by the pleadings and the evidence. Therefore, we shall consider the proper construction of the statute somewhat more in detail than we did in the Hill case. We are of the opinion that the view there expressed is clearly capable of extension to the instant case for the reasons we shall now state.

In order to understand what the legislature intended by chap. 2046, section 1, it will be useful to consider the statute law which the legislature amended by this chapter, and also what the common law on the subject was before any statutory change was made. At common law, as declared by this court, the owner of an automobile was not liable for damage caused by a person while driving for his own pleasure and not on the owner's business, or by a servant or agent acting outside the scope of his employment or agency. Colwell v. Aetna Bottle & Stopper Co., 33 R.I. 531, 82 A. 388.

This law was changed by the enactment of P.L.1927, chap. 1040, sec. 3, which enlarged the legal responsibility of the owner of a car who consented to the operation of it by another person. The enlargement consisted in this, that the operator, if it was shown that he was using the owner's car with the owner's consent, was deemed to be the owner's agent; and it was no longer a defense to the owner that the operator had temporarily departed from the course of his employment or the scope of his agency. Guerin v. Mongeon, 49 R.I. 414, 143 A. 674; Kernan v. Webb, 50 R.I. 394, 398, 148 A. 186; Massart v. Narragansett Elec. Co., 54 R.I. 154, 171 A. 238.

Such was the law until the enactment of P.L.1929, chap. 1429, sec. 10, which excluded a bailee of the owner from the operation of the act. Ford v. Dorcus, 54 R.I. 1, 168 A. 814. Otherwise, the act remained the same until 1933. In that year chap. 2046, section 1, which governs the instant case, was enacted. This entirely amended sec. 10 and substituted for it what amounted substantially to a new act. No longer was proof of permission to use the owner's automobile deemed to be proof that the operator was the agent of the owner, and no longer was it necessary for the plaintiff to prove first that the operator was operating the motor vehicle with the owner's consent. Under the amended law, it was necessary only for the plaintiff to prove that, at the time of the accident, the motor vehicle was registered in the name of the defendant as owner to make out a prima facie case of responsibility of the defendant for the conduct of the operator of the vehicle. The statute further required that, if the defendant desired to avail himself of the defense of "absence of such responsibility," he must plead such defense by "answer" and prove it.

If the intention of the legislature in enacting this statute was to set up a mere presumption as contended for by the defendant, it would have been a futile act, as prior to the enactment of any of the abovementioned statutes such was already...