Kent v. Draper Soap Co.

• Decision Date: 14 January 1949
• Docket Number: No. 8859.,8859.
• Citation: 63 A.2d 571
• Parties: KENT v. DRAPER SOAP CO.
• Court: Rhode Island Supreme Court

63 A.2d 571

KENT

v.DRAPER SOAP CO.

No. 8859.

Supreme Court of Rhode Island.

Jan. 14, 1949.

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

Trespass on the case for negligence by John W. Kent against Draper Soap Company, wherein a verdict was returned for plaintiff. To review an order granting defendant's motion for new trial, plaintiff brings exceptions, and, to review an order denying defendant's motion for directed verdict, defendant brings exceptions.

Exceptions overruled and case remitted for a new trial.

Carroll & Dwyer and Edward F. J. Dwyer, all of Providence, for plaintiff.

Frederick W. O'Connell and Swan, Keeney & Smith, all of Providence, for defendant.

CAPOTOSTO, Justice.

This action of trespass on the case for negligence was tried to a jury in the superior court and resulted in a verdict of $1050 for the plaintiff. Defendant's motion for a new trial was granted. The case is before us on plaintiff's exception to the granting of such motion and also on defendant's exception to the denial of its motion for a directed verdict.

For the purposes of this case we need not discuss the accident except to say that plaintiff's automobile was hit in the rear and greatly damaged by a truck driven by William G. E. Ware. The truck was admittedly owned by the defendant and registered in its name. The collision occurred shortly after midnight of December 24, 1943, on Summit street, a public highway, near its intersection with Division street in the city of Pawtucket. Road and weather conditions were good.

The controlling question in the case is whether at the time of the accident Ware was operating the truck with the consent, express or implied, of the defendant. It is therefore necessary to refer in some detail to the evidence on this point. In the fall of 1943 Quincy I. Abrams and John Carlson, both of Newton, Massachusetts, acquired all the capital stock of the defendant corporation, then practically inactive. Soon thereafter it resumed operations with about six employees, among whom were William Ware, a young man recently married, and his father Herbert Ware. The former was employed as a general utility man, while the latter, who lived directly across from the plant, served as fireman and watchman. Abrams, who commuted almost daily from Boston, was in charge at the plant. No one was specifically charged with the duty of operating the truck as it was used infrequently.

William Ware testified that he had driven the truck on four or five errands for the defendant during the morning of December 24, 1943; that when he had completed these he parked the truck in front of his father's house, where it was in plain view of anyone in defendant's office; that he then went into the plant and remained there until about 4:30 o'clock that afternoon, when he told his father and two other employees, Fred Draper and one Sullivan, that he was going to use the truck to transport a bureau from his father's house to his own home, which was about a mile and a half away; and that nobody then told him that he could not take the truck for that purpose. He further testified that in the course of his employment he took his orders, which included the driving of the truck, from his father, or from ‘Doc,’ who later was identified as Robert Weiss, the plant's chemist, or from Draper, whose duties as an employee of the defendant are not clear, but not from Sullivan, who was an ordinary worker like himself. ‘To be truthful,’ he testified, ‘everybody was the boss.’ Ware's father, Draper and Sullivan did not testify.

It is unnecessary to refer to the circumstances following the accident other than to say that on December 27, 1946, Ware was sentenced for driving so as to endanger life, leaving the scene of an accident and driving without a license. We may also mention here that no one in behalf of the defendant ever complained to the police that the truck had been driven away without its consent.

Both Abrams and Carlson, witnesses for the defendant, testified that the former was the manager of the plant and that the latter went there occasionally for business purposes; that they had no driver for the truck as it was rarely used; that no person employed by the defendant was ever permitted to operate the truck without first obtaining permission from either of them if they were at the plant; and that in their absence Weiss, the chemist, alone had authority to grant such permission. Abrams further testified that on the day in question he, Carlson and Weiss were at the plant; that about noontime he and Carlson gave the employees their pay with a bonus and shortly thereafter left for Boston, at which time the truck was in the garage. Weiss, also called by the defendant, testified that in the absence of Abrams and Carlson the truck could not be operated by any of defendant's employees without his permission; that he was at the plant when Abrams and Carlson left but went home about an hour later as the plant was closing earlier on that day because of Christmas. Each of these three witnesses testified positively that he had not given Ware permission to use the truck on that day.

We will now consider defendant's exception to the denial of its motion for a directed verdict. Under this exception it contends that on any rational view of the evidence the only reasonable conclusion therefrom is that Ware took the truck without the consent, express or implied, of the defendant. We cannot sustain this contention in view of the provisions of Public Laws 1940, chapter 867, sec. 10, upon which the plaintiff relies, and of the conflicting evidence which depends largely upon credibility in order to determine its weight on the question of consent.

The pertinent part of sec. 10 is 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, or lessee, or bailee, thereof, expressed or implied, the operator thereof, if other than such owner, or lessee, or bailee, shall in case of accident, be deemed to be the agent of the owner or lessee, or bailee, of such motor vehicle * * *. 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.’

Both provisions constitute important remedial legislation and were obviously intended to do away with the difficulty which, under the law as it stood prior to the original enactment of the statute, was often encountered by injured persons in trying to make formal proof that the driver of the vehicle was operating it at the time of the accident as the agent of the owner. Colwell v. Aetna Bottle & Stopper Co., 33 R.I. 531, 82 A. 388; Landry v. Richmond, 45 R.I. 504, 124 A. 263, 32 A.L.R. 1500. Whether the operator had the consent of the owner would ordinarily be unknown to the plaintiff and often very difficult of ascertainment by him, as the evidence on that point would normally be in the control of the defendant. When the statute was enacted in its present from in 1940 the legislature evidently believed that greater justice would be done in this class of cases by eliminating the ordinary defenses under the law of agency and placing the burden of proof of consent upon the owner of a motor vehicle registered in his name if he saw fit to permit another, not his lessee or bailee, to operate such vehicle with his consent on a public highway.

The history of the statute before its amendment in 1940 was outlined first in Gemma v. Rotondo, 62 R.I. 293, 5 A.2d 297, 122 A.L.R. 223, and after such amendment, in Baker v. Rhode Island Ice Co., 72 R.I. 262, 50 A.2d 618. An amplification of that outline with a...