Hill v. Cabral

• Court: Rhode Island Supreme Court
• Writing for the Court: CAPOTOSTO, Justice
• Citation: Hill v. Cabral, 62 R.I. 11, 2 A.2d 482 (R.I. 1938)
• Decision Date: 26 November 1938
• Docket Number: No. 7926.,7926.
• Parties: HILL v. CABRAL.

2 A.2d 482

HILL

v. CABRAL.

No. 7926.

Supreme Court of Rhode Island.

Nov. 26, 1938.

Exceptions from Superior Court, Kent County; Walter Curry, Judge.

Action by Everett A. Hill against Ermina Cabral, for injuries sustained when the plaintiff was struck by an automobile owned by the defendant. The verdict was directed for the defendant, and the plaintiff brings exceptions.

An exception sustained and case remitted to superior court for new trial.

Hartigan, Mullen & Roberts, John E. Mullen, and Wilfrid E. McKenna, all of Providence, for plaintiff.

Patrick H. Quinn, of Providence, for defendant.

CAPOTOSTO, Justice.

This is an action to recover for personal injuries received by the plaintiff shortly after 1 o'clock on the morning of November 25, 1934, on Bald Hill Road in the city of Warwick, which injuries were alleged to have been caused by the negligent operation of defendant's automobile. In the superior court the trial justice, on motion of the defendant at the conclusion of all the testimony, directed a verdict for the defendant. The case is before us on plaintiff's exception to this ruling and on certain other exceptions taken during the trial.

The evidence for the plaintiff shows that his automobile stalled on Bald Hill Road, a four-lane highway; that the car was then in the extreme right-hand lane, with its left side slightly over the white line between the first and second lane for traffic moving in the same direction; that all lights on the car were lighted; that when the car stopped, he got out and, taking whatever tools were necessary from the car, he succeeded in starting the engine; and that while he was putting those tools back in their place, standing on the right side of his car, he was suddenly struck by the defendant's automobile as it was driven between where he was standing and the right shoulder of the road. The evidence is uncontradicted that the automobile was registered in the defendant's name with the state division of motor vehicles.

There is no testimony in behalf of the defendant as to how the accident happened. The only ground upon which defendant denies liability is that her son Joseph, who was driving the car at the time of the accident, took the car without her knowledge and against her express refusal to allow him to use it.

Omitting details that are not controlling, the testimony for the defendant on this point is substantially as follows: The defendant testified that she refused to let her son have the automobile because he had no license, and that shortly thereafter she went out, after putting the key of the automobile "in a closet." This was the extent of her direct examination. Her cross-examination shows that Joseph had frequently used the automobile with her consent up to the time when he had a previous accident in June 1934, which resulted in the revocation of his driver's license; that between 4 and 4:30 p. m. of November 24, 1934, the afternoon preceding the accident in the instant case, Joseph asked for the car and she refused to let him have it, whereupon he left the house but "might have been around there somewhere"; that shortly thereafter she put the key to the car "in the cupboard * * * in the pantry", and, locking the house, she left with her daughter Edith and went to her sister's home, where she stayed until after 9:30 or 10 o'clock of that evening. From this testimony, the defendant asks us to conclude that Joseph must have entered the house while she was out, and, finding the automobile key, took the car without her knowledge or consent.

The defendant's daughter Edith, and her younger son Emanuel, testified that they were present when she refused to let Joseph have the car, although the defendant in her testimony had previously testified that she could not remember whether Emanuel, who was working in Providence, came "that night at six, or worked overtime."

The testimony of Joseph on the question of his mother's refusal to let him have the car is to the same effect. He further testified that, when there was no one home, he found the automobile key "somewhere in the house", and just took the car; that he then picked up a friend, Gerard Cournoyer, and spent the evening with him and two women, and that he was taking Cournoyer back to a C.C.C. camp when the accident happened. This witness admitted that, by reason of the accident, he was convicted on a charge of drunken driving and of operating an automobile without a license.

At the trial the plaintiff attempted to show, in cross-examination of the defendant and of Joseph, that Cournoyer came to the defendant's house on the afternoon of November 24 while the defendant was at home; that he ate there, and that thereafter Joseph took the car with the defendant's consent. Both witnesses admitted that Cournoyer had been at the house on previous occasions but denied that he had been there on that day. Although Cournoyer was a close friend of Joseph, he did not testify nor was any reason given by the defendant for not calling him as a witness.

The defendant's responsibility under the statute governing this case was narrowed by her evidence to the sole issue of fact as to whether the automobile was operated at the time of the accident with her consent, express or implied. That statute is Public Laws 1933, chapter 2046 section 1, amending Public Laws 1929, chapter 1429, sec. 10, amending Public Laws 1927, chapter 1040, sec. 3. The decisions of this court construing the original statute of 1927 and the amendment of 1929 are not controlling here, as they deal with statutes substantially different from the amendment of 1933, which is now under consideration. The object of all three statutes, however, is the same. From the enactment of the original statute in 1927 the plain intent of the legislature has been to more adequately protect an innocent victim against financial loss following an accident in case a motor vehicle is operated by a person other than the owner.

Public Laws 1933, chap. 2046, section 1, which is controlling in this case, is as follows: "Section 1. Section (10) of chapter 1429 of the public laws of 1929 entitled, 'An act concerning the financial responsibility of owners and operators of motor vehicles,' is hereby amended to read as follows:

"'Sec. 10. Whenever any motor vehicle shall be used, operated, or caused to be operated upon any public highway of this state and an action is begun to recover damages for injuries arising to the person or to the property or for the death of a person, arising out of an accident or collision in which that motor vehicle was involved, evidence that at the time of such accident or collision it 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...