Kernan v. Webb

• Court: Rhode Island Supreme Court
• Writing for the Court: STEARNS, C. J.
• Citation: Kernan v. Webb, 50 R.I. 394, 148 A. 186 (R.I. 1929)
• Decision Date: 19 December 1929
• Docket Number: Nos. 6700, 6701.,s. 6700, 6701.
• Parties: KERNAN v. WEBB (two cases).

148 A. 186

KERNAN

v. WEBB (two cases).

Nos. 6700, 6701.

Supreme Court of Rhode Island.

Dec. 19, 1929.

Exceptions from Superior Court, Kent County; Herbert L. Carpenter, Judge.

Separate actions by Thomas C. Kernan and by Helen Kernan against C. F. Webb, tried together. Verdicts for plaintiffs, and defendant brings exceptions. Exceptions overruled, and case remitted.

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

Sherwood, Heltzen & Clifford, of Providence, for defendant.

Ralph T. Barnefield, of Providence, amicus curiae.

STEARNS, C. J. These are two actions for negligence brought by Thomas C. Kernan and his wife to recover for damages suffered by them in an automobile accident which occurred on a public highway in the town of Warwick on the night of February 2, 1928. The actions were tried together, resulted in a verdict for each plaintiff, and are now here on bills of exceptions in which the only exception is to the refusal of the trial justice to direct a verdict for the defendant.

In each declaration plaintiff alleges that defendant, his servant and agent, did negligently operate defendant's automobile, thereby causing the damages for which suit is brought. Defendant was called as a witness by plaintiffs. He testified that he was the owner of the automobile which collided with the automobile in which Mr. and Mrs. Kernan were riding; he denied that he had given any one permission to operate or use his automobile in Rhode Island on the evening of the accident. The deposition of Miss Young, a resident of Roxbury, Mass., taken by the defendant in Boston a few days before the trial, was read by plaintiffs' counsel to the jury. Miss Young testified that she was using defendant's car on the night in question; with her were a chauffeur she had employed to drive the car, his mother, and a Mr. Penney; that she did not know where any of them could be found; that the last time she had seen any of them was a week after the accident; that she did not have defendant's permission to use the car on the night in question or at any time outside the limits of Massachusetts. Defendant did not dispute the negligence of the driver of his automobile.

The main issue was whether or not defendant's automobile was operated at the time of the accident with the consent of the defendant within the purview of the statute, chapter 1040, § 3, Public Laws 1927. Said section is as follows: "Whenever any motor vehicle shall be used or operated upon any public highway of this state with the consent of the owner or lessee or bailee thereof, express or implied, or under any agreement with such owner or lessee or bailee, express or implied, the operator thereof, if other than such owner, shall in case of accident, be deemed to be the agent of the owner of such motor vehicle, and the agent of such lessee and of such bailee. The provisions of this section shall apply only to accidents which occur subsequent to the time when this act goes into effect."

The first question is, Was there any evidence that the use of the automobile at the time of the accident was with the consent, express or implied, of the defendant owner? On a motion to direct a verdict, the question of the weight of the evidence is immaterial and irrelevant. If there was any evidence of defendant's consent to the use of his car in this state, a question of fact was raised which should have been submitted to the jury. The weight of any such evidence could be properly determined only after a verdict. Defendant is a married man. He has a summer home in Duxbury and a winter home in Boston where he is engaged in business. Miss Young is a registered nurse. She lives with her mother in the Roxbury district of Boston. For a long time she has been an intimate friend of the defendant. She is not acquainted with his wife. Defendant was in the habit of leaving his automobile at Miss Young's house in the morning on his way to his office and thence proceeding into the city on the elevated railway. Miss Young used the automobile often, and occasionally kept it in her own garage. Defendant says she was a good driver, in fact better than he was. Defendant admits that she had his permission to use the car in the state of Massachusetts within the limit of 50 miles from Boston. He testified that he always forbade Miss Young to use the car at night or beyond the limit of 50 miles from Boston. At one time he said she had permission to use the car only in Boston at a speed not to exceed 50 miles an hour. Later he changed this testimony. On Monday of the week of the accident, defendant and Miss Young had luncheon together in Boston; that evening he left Boston for a short business trip of four or five days. He says he left the car in his garage. She says it was left at her home, and that she kept the car that week in her own garage. On the Thursday following (February 2), Miss Young and her companions left Boston at 4 o'clock in the afternoon intending, she says, to drive through to New Jersey that night. After the collision with the Kernan automobile, Miss Young, in answer to questions, stated that she had the car registration with her; that she was Mrs. Webb; that the automobile was in her care, and she was responsible for it.

Further details of the testimony are unnecessary. Defendant and Miss Young were interested witnesses. Their testimony was so contradictory and inconsistent that neither judge nor jury was bound to accept it as wholly true. The trial justice evidently did not believe it, nor was he bound to do so. A trial justice should not direct a verdict on testimony which he does not believe. McIver v. Schwartz, 50 R. I. 68, 145 A. 101.

Considering all the evidence and the testimony on the question of consent, it is a fair conclusion that Miss Young was using the car with defendant's...