Mitchell v. Hastings & Koch Enterprises, Inc.

• Decision Date: 25 April 1995
• Docket Number: No. 92-P-1217,92-P-1217
• Citation: 38 Mass.App.Ct. 271,647 N.E.2d 78
• Parties: Marlene MITCHELL v. HASTINGS & KOCH ENTERPRISES, INC., & others. 1
• Court: Appeals Court of Massachusetts

Page 78

647 N.E.2d 78

38 Mass.App.Ct. 271

Marlene MITCHELL v. HASTINGS & KOCH ENTERPRISES, INC., & others. ¹ No. 92-P-1217.

Appeals Court of Massachusetts Hampden.

Argued Oct. 5, 1993.

Decided March 22, 1995.

Further Appellate Review Denied

April 25, 1995.

William P. O'Neill, for Hastings & Koch Enterprises, Inc.

Michael K. Callan, for Ray Stone Pontiac.

John F. Dalsey, for plaintiff.

Before ARMSTRONG, GILLERMAN and PORADA, JJ.

ARMSTRONG, Judge.

Marlene Mitchell was injured when the motorcycle on which she rode as a passenger was in an accident with an automobile driven by Frank Nowak. To recover for those injuries, she brought this action against Nowak and the automobile's owner, Hastings & Koch Enterprises, Inc. (Hastings & Koch). Hastings & Koch cross-claimed against Nowak and filed a third-party complaint against Steven Hunter and Ray Stone Pontiac, thought to be the operator and owner, respectively, of the motorcycle. Mitchell amended her complaint to state claims against the same two defendants. A jury, on special questions, returned verdicts against all the defendants except Steven Hunter, assigning (under the comparative negligence law, G.L. c. 231, § 85) percentages of fault. The trial judge then ordered entry of a judgment, apportioning Mitchell's total damages, found by the jury to be $150,000, against the defendants ² in proportion to their respective percentages of fault, and he denied a motion by Mitchell to amend the form of the judgment to reflect joint and several liability. The case is before us on appeals by Mitchell, Hastings & Koch, and Ray Stone Pontiac.

The circumstances of the accident were only dimly illuminated by the evidence at trial. The Nowak car, it was clear from the physical evidence, had been traveling northbound and then crossed the southbound lane and crashed into a concrete wall on the west side of the road. The motorcycle lay in the road, apparently on the southbound side, ³ with the plaintiff lying on the pavement nearby. The damage to the motorcycle was interpreted by one witness to show a front end collision and by another to show merely abrasion marks from scraping on its side against the pavement. At the scene, the motorcycle operator identified himself to a police officer as Steven Hunter, but no statement was taken from him. He rode in the ambulance with Mitchell to the hospital but then disappeared. Mitchell was unconscious at the scene, with a dangerously elevated blood alcohol reading of .312. When she awoke, she had no recollection whatever, either of the accident or of the identity of the motorcyclist who had given her the ride. Frank Nowak, the driver of the car, fled from the accident scene on foot, leaving the keys in the ignition. Three days later, he appeared at the police station, brought in by Jon Hastings of Hastings & Koch, the owner of the car, and gave a statement to the police that the motorcycle had driven into his lane and he had swerved left, into the oncoming lane and the wall, to avoid a collision. But by the time of his deposition, and later at trial, Nowak professed to have no recollection beyond the fact of being in an accident. "[I]t was just one of those things that happened so quick," he testified; "[i]t just happened." He had, at trial, no recollection of what vehicle he had been driving, where he had come from, where the accident occurred, or whether he had been drinking.

Another version of the accident came in over objection. One Lavonda Bobb testified that she had been at a bar the night of the accident drinking with her "very good friend" Mark Daigle, and that Mitchell, also drinking at the bar, and an acquaintance of both, had come over and pestered Daigle incessantly to give her a ride on his "bike." Lavonda Bobb had eventually departed, leaving Daigle and Mitchell together. Later that night, about 4:00 A.M. two hours after the accident, Bobb got a call from Daigle saying that he had been in an accident, that a car had changed lanes and collided with his motorcycle, and that Mitchell was in the hospital. Later, Daigle had come to Bobb's apartment, where she cleaned his injuries--only abrasions, apparently--and he reiterated his story that the accident was caused by the car's going out of control. Daigle himself was unavailable to testify, having died of a drug overdose before trial, but his statements to Bobb came in as declarations of a deceased person, G.L. c. 233, § 65. ⁴

Other facts will be mentioned in connection with the arguments to which they pertain.

1. Declaration of a deceased person. Hastings & Koch objected to Lavonda Bobb's recitation of Mark Daigle's version of the accident, casting the blame on Nowak. General Laws c. 233, § 65, creates an exception to the hearsay rule for the declaration of a deceased person, provided the court makes a preliminary finding that the declaration was "made in good faith and upon the personal knowledge of the declarant." See Old Colony Trust Co. v. Shaw, 348 Mass. 212, 216, 202 N.E.2d 785 (1964). We do not understand Hastings & Koch to argue that, on the evidence before him, the judge could not properly find Daigle's alleged statement to Lavonda Bobb to have been made in good faith. ⁵ Rather, it argues that the judge failed to make the necessary preliminary findings of good faith and personal knowledge and instead abdicated his role to the jury. Its argument is predicated on the facts that the judge did not articulate the requisite findings and, when he denied Hastings & Koch's motion in limine to exclude the Daigle declaration, made the statement, "I'll let the jury decide whether the statements were made in good faith."

There is little to the argument. It is not contended that a judge, having properly admitted statements of a deceased person in evidence, may not instruct the jury to scrutinize them and to consider the declarant's motive in making them. As to the judge's failure to articulate the preliminary findings, that would have been the better practice; but the decisions are legion to the effect that admission of the deceased person's alleged statements imports findings by the judge of that person's personal knowledge and good faith. See, e.g., Stanton's Case, 331 Mass. 378, 379-380, 119 N.E.2d 388 (1954); Ricciutti v. Sylvania Elec. Prod., Inc., 343 Mass. 347, 351, 178 N.E.2d 857 (1961); Reni v. Courtney, 4 Mass.App.Ct. 235, 237, 344 N.E.2d 909 (1976). The trial judge's remark does not indicate to us that he misunderstood the prerequisites for admission of a deceased person's statements. It would take a clearer showing to make us conclude that such was the case.

2. Hastings & Koch's responsibility for Nowak's conduct. With Mark Daigle's statement received in evidence through Lavonda Bobb's testimony, the jury had ample basis for concluding that the accident occurred primarily as a result of Nowak's losing control of his car. ⁶ Hastings & Koch argues, however, that it cannot be found responsible for Nowak's negligence, that he was not an employee of Hastings & Koch, and that Nowak had used the car without authority.

Though ardently pressed, the argument is without legal merit. Under G.L. c. 231, § 85A, if a car owned by a dealer, bearing its dealer plates, is involved in an accident, the dealer is prima facie responsible for the driver's conduct. Legarry v. Finn Motor Sales, Inc., 304 Mass. 446, 448-449, 23 N.E.2d 1011 (1939). Hastings & Koch does not contest that it owned the car Nowak was driving or that it bore a Hastings & Koch dealer plate. Hastings & Koch thus had the burden of proving that Nowak was not its servant or agent in driving the car. Cheek v. Econo-Car Rental Sys. of Boston, Inc., 393 Mass. 660, 662, 473 N.E.2d 659 (1985). "Under this statute the mere fact of registration in the name of the defendant as owner commonly carries the case to the jury so far as the agency of the driver in behalf of the defendant is concerned. The jury may disbelieve the testimony of witnesses tending to the contrary." Legarry v. Finn Motor Sales, Inc., supra, 304 Mass. at 447, 23 N.E.2d 1011 (citations omitted). See also Nugent v. Classic Car Corp., 379 Mass. 913, 393 N.E.2d 934 (1979). In rejecting Hastings & Koch's contention that Nowak stole the car, the jury might well have taken into account the evidence that the alleged theft of the car was not reported to the police until three days after the accident; that Frank Nowak, in testifying, denied stealing the car; that a theft by Nowak of the car, plates, and keys would have been difficult, the Hastings & Koch lot being enclosed by fencing topped with barbed wire and patrolled by a guard dog; that Nowak had an acknowledged, if informal, relationship with Hastings & Koch, having driven vehicles in the past to or from auto auctions for Hastings & Koch and having brought friends at times to the Hastings & Koch lot; that Nowak had been a friend of Jon Hastings for ten years; that Jon Hastings brought Nowak in to the police station originally and continued to drive him to and from his pretrial appearances; that the complaint for car theft was dismissed for want of prosecution; and that Nowak could not account for how he came into possession of the car. In the circumstances, the jury could properly conclude that Nowak and Jon Hastings were being less than forthcoming about the extent of their relationship and that, in all likelihood, Nowak was using Hastings & Koch's car and dealer plate with its permission.

3. Negligent entrustment. Hasting & Koch was found liable also on a count alleging that it had negligently entrusted the car to Nowak. Liability on this theory is predicated on the owner's having entrusted a vehicle to a person who was incompetent or unfit to use it properly, whose incompetence or unfitness was the cause of the injury to the plaintiff. The general rule in Massachusetts is that the entrustor, to be liable, must have had actual knowledge of the unfitness of the entrustee (as contrasted...