Hartley v. Johnson

• Court: Rhode Island Supreme Court
• Writing for the Court: PER CURIAM
• Citation: Hartley v. Johnson, 54 R.I. 477, 175 A. 653 (R.I. 1934)
• Decision Date: 04 December 1934
• Docket Number: Nos. 7583, 7584.,s. 7583, 7584.
• Parties: HARTLEY v. JOHNSON (two cases).

175 A. 653

HARTLEY

v. JOHNSON (two cases).

Nos. 7583, 7584.

Supreme Court of Rhode Island.

Dec. 4, 1934.

Exceptions from Superior Court, Kent County; Charles A. Walsh, Judge.

Actions of trespass by Anna Hartley, p. a., and by Robert Hartley, against Herbert E. Johnson. Verdict for the plaintiff in each case, and the defendant brings exceptions.

Exceptions sustained in accordance with opinion.

Quinn, Kernan & Quinn and Michael De Ciantis, all of Providence, for plaintiffs.

Henry M. Boss, Jr., and Francis W. Con-Ian, both of Providence, for defendant.

PER CURIAM.

These are actions of trespass on the case for negligence. The first is an action by a minor child to recover for injuries sustained by being struck by defendant's bakery truck. The second is an action by the child's father to recover the expenses incurred for medical treatment for said injuries. The jury returned a verdict for the plaintiff in each action and assessed damages in the amount of $2,500 for the child and $653 for the father. The cases are hero on defendant's exceptions as follows: To the refusal of the trial justice to direct a verdict for the defendant and to the refusal of said justice to grant the defendant a new trial.

The defendant, who operates a bakery, supplies motor vehicles for the use of his employees in the distribution of his products. At the time of the accident one of defendant's trucks was being operated by one Kenneth Pearson, who at no time entered the employment of the defendant. The father of Kenneth was employed by defendant under a written agreement which provided that he be paid a commission of 15 per cent. on all goods sold. The defendant knew that Kenneth was working on the truck with and assisting his father; and there is some evidence that defendant knew that the son had at times operated the truck when his father was with him.

It does not appear that the father and son understood that the latter was authorized to drive when the father was not on the truck. On one occasion when the father was ill, special permission was sought and obtained for the son to drive the truck for a single day. There is no evidence that the son, in the absence of his father, had authority from the defendant to drive the truck on the day of the accident.

The question of agency is controlled by the common law and not by section 10, c. 1429, Pub. Laws 1929, which was amended after the accident (April 26, 1933) and before the trial, which was held June 6 and 7, 1934. "Statutes which simply declare a rule of evidence, without creating new rights nor taking away vested ones, are not within the rule against retrospective operation." 25 R. C. L. 791. Said section 10 provided that, whenever any motor vehicle shall be operated upon any public highway of this state with the consent of the owner, lessee, or bailee, the operator "shall in case of accident, be deemed to be the agent of the owner or lessee, or bailee, of such motor vehicle unless such operator shall have furnished evidence of financial responsibility."

Section 10 as amended (Pub. Laws 1933, c. 2046) now provides 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, and absence of such responsibility shall be an affirmative defence to be set up in the answer and proved by the defendant."

A prima facie case made by proof that the motor vehicle was registered in the name of the defendant as owner is a mere presumption and has force only until rebutted. Smith v. Tompkins, 52 R....