Gilbert v. Girard

• Citation: 109 R.I. 68,279 A.2d 919
• Decision Date: 05 August 1971
• Docket Number: No. 988-A,988-A
• Parties: Lee R. GILBERT, p.a., et al. v. Raymond A. GIRARD et al. ppeal.
• Court: United States State Supreme Court of Rhode Island

Page 919

279 A.2d 919

109 R.I. 68

Lee R. GILBERT, p.a., et al. v. Raymond A. GIRARD et al.

No. 988-Appeal.

Supreme Court of Rhode Island.

Aug. 5, 1971.

Abatuno & Chisholm, Alfred G. Thibodeau, Providence, for plaintiffs.

Albert E. Tondreau, Pawtucket, for defendant Del A. Girard.

OPINION

JOSLIN, Justice.

We have before us the remaining parts of a civil action which arose out of a collision between two automobiles. The identities of the parties to that litigation and its pertinent facts are set out in Gilbert v. Girard, R.I., 272 A.2d 691, and need not be repeated here. Suffice it to say that all of the aspects of that litigation have been disposed of save for two claims against the defendant, Del A. Girard, the owner of one of the vehicles involved in the collision. One of those claims is to recover for the injuries sustained by Lee Richard Gilbert, then a minor, who was a passenger in the Girard vehicle when the accident occurred. The other is for the consequential damages suffered by Lee's father.

In those parts of the litigation which were left undecided in Gilbert v. Girard, supra, the decisive question, and the one on which the result of these two claims hinges, is whether Raymond Girard, Del's brother and the operator of his vehicle at the time of the collision, had his brother's consent to use his automobile. On that issue the evidence is in conflict. On the one hand, Del testified that Raymond took his automobile without permission and Raymond confirmed that testimony; and on the other hand, Lee, when he was on the witness stand, quoted Raymond as saying that he had Del's permission to use his automobile. When in our earlier opinion we considered the legal ramifications of this evidentiary conflict, we queried first, whether Lee's testimony could have been excluded as inadmissible hearsay; and second, whether that testimony, which was admitted without interposition of an objection, became such a part of the evidence in the case as to be usable in support of the verdicts returned by the jury for plaintiffs. Since those questions, although critical to the outcome, were neither briefed nor argued when the litigation was first here, we reserved decision on the claims of Lee and his father against Del in order to afford the interested parties an opportunity to present their arguments thereon in supplemental briefs. Those briefs have since been filed and are now before us.

In positing the first of our queries, plaintiffs suggest that we were not as precise as we might have been. The question we posed was whether Lee's testimony as to agency could have been barred by a proper and timely objection under the rule which says:

'* * * that the extrajudicial statements, admissions or declarations of one purporting to be an agent are inadmissible as against the principal to prove agency. Mello v. Coy Real Estate Co., 103 R.I. 74, 78, 234 A.2d 667, 670; Furlong v. Donhals, Inc., 87 R.I. 46, 53, 137 A.2d 734, 738; Beaudette v. Cavedon, 50 R.I. 140, 143, 145 A. 874, 875; Martin v. St. Aloysius Church, 38 R.I. 339, 357, 95 A. 768, 774.' Id., 272 A.2d at 694.

The plaintiffs readily acknowledge the force of the rule we quote, but they argue that it is inapposite here inasmuch as Lee's in-court repetition of what Raymond had told him outside of the courtroom was put into evidence for the limited purpose of proving that he (Raymond) was operating the Girard motor vehicle that his brother's consent and not to establish that he was Del's agent. Their argument ignores G.L.1956 (1968 Reenactment) § 31-33-6, which provides, in substance, that a person operating a motor vehicle on a public highway with the owner's consent 'shall in case of accident be deemed to be the agent of the owner * * *.' ¹ (Emphasis supplied.)

The plaintiffs' argument, moreover, can be faulted on another ground, and that is its apparent assumption that the rule we refer to is a principal of the law of agency, rather than of evidence. That is just not so.

Here, Lee, when he quoted Raymond, was hopefully anticipating that his extrajudicial utterances would be accepted as proof of the facts asserted therein and as credible testimonial assertions. That kind of evidence, however, is hearsay, Martin v. Estrella, R.I., 266 A.2d 41, 48; Allen v. D'Ercole Constr. Co., 104 R.I. 362, 369, 244 A.2d 864, 869, and the exclusionary rule which bars the use of hearsay applies no less to out-of-court utterances which are offered to prove an owner's consent than it does to those which are offered to establish an agency relationship between owner and operator.

This brings us to the second question we asked in Gilbert v. Girard, supra, and that is whether and to what extent inadmissible, but unobjected to, hearsay evidence is available and usable in litigation. Although that kind of evidence is incompetent to establish a fact, failure to object to its admission waives its incompetency. United States v. Lutz, 142 F.2d 985, 988-989 (3rd Cir. 1944); Thorn v. Cross (Mo.App.), 201 S.W.2d 492, 496-497; 1 Wigmore, Evidence (3d ed.) § 18 at 321. Once admitted, herefore, such evidence, if relevant, is entitled to be treated as if it were legally admissible and to be accorded such probative effect as under all the circumstances is deemed proper. Abel of Arkansas v. Richards, 236 Ark. 281, 287, 365 S.W.2d 705, 709; Sallee v. Routson, 247 Iowa 1220, 1222-1223, 78 N.W.2d 516, 517-518; Barlow v. Verrill, 88 N.H. 25, 183 A. 857; Poluski v. Glen Alden Coal Co., 286 Pa. 473, 133 A. 819. See also Grimes v. Grimes, 61 R.I. 198, 200 A. 442; McCormick, Evidence (1954 ed.) § 54 at 126-128.

This general principle applies throughout all stages of a case, and accordingly, hearsay which is admitted without objection merits consideration by the trier of facts, Hayden v. Chalfant Press, Inc., 281 F.2d 543, 548 (9th Cir. 1960); Klingler v. Ottinger, 216 Ind. 9, 17, 22 N.E.2d 805, 809; Roberts v. Interstate Life & Accident Ins. Co., 232 Miss. 134, 140, 98 So.2d 632, 635, by a trial justice when he passes on a jury verdict, Stevens v. Mirakian, 177 Va. 123, 131, 12 S.E.2d 780, 783, and by an appellate court when it reviews a trial court's findings. Old v. Cooney Detective Agency, 215 Md. 517, 525-527, 138 A.2d 889, 894-895. An ample listing of additional authorities in support of these views is available in annot., 79 A.L.R.2d 890.

These rules, while widely accepted, are not necessarily applied by all courts in every situation where hearsay is admitted without objection. One instance is found in the fact pattern of this case, namely, when hearsay which was not objected to stands alone without corroboration and is contradicted by clearly admissible direct and positive testimony. On that set of facts some courts say that the evidence, because it becomes competent when it is admitted without objection, is in the case for whatever it is worth. Stevens v. Mirakian, supra; Carraway v. Johnson, 63 Wash.2d 212, 386 P.2d 420. Others, while they do not question the competence of such evidence, give it little or no probative force or effect and they say that it must therefore yield to direct and positive conflicting legal evidence. N.L.R.B. v. Ford Motor Co., 114 F.2d 905, 915 (6th Cir. 1940). See, American Rubber Products Corp. v. N.L.R.B., 214 F.2d 47 (7th Cir. 1954).

This Court apparently aligned itself with the latter group in Empire Cream Separator Co. v. Parillo, 47 R.I. 178, 127 A. 1. In that case an out-of-court utterance of a person who assumed to act as the agent for another was admitted without objection, and that evidence, even though lacking in...