Redding v. Picard Motor Sales, Inc.

• Decision Date: 24 May 1967
• Docket Number: Nos. 74,75,s. 74
• Citation: 229 A.2d 762,102 R.I. 239
• Parties: William E. REDDING, Adm'r v. PICARD MOTOR SALES, INC. William E. REDDING, Adm'r v. Edmund TUCKER. Appeal
• Court: Rhode Island Supreme Court

Page 762

229 A.2d 762

102 R.I. 239

William E. REDDING, Adm'r v. PICARD MOTOR SALES, INC.

William E. REDDING, Adm'r v. Edmund TUCKER.

Appeal Nos. 74, 75.

Supreme Court of Rhode Island.

May 24, 1967.

Gunning & LaFazia, Raymond A. LaFazia, Providence, Angelo DiSpirito, Woonsocket, John F. McDonough, Providence, for plaintiff

Higgins & Slattery, Eugene V. Higgins, Providence, for Picard Motor Sales, Inc.

Francis V. Reynolds, Providence, M. Durkan Cannon, Woonsocket, Leonard A. Kiernan, Jr., Providence, for Edmund Tucker.

OPINION

ROBERTS, Chief Justice.

These are two civil actions brought under the wrongful death statute, G.L.1956, chap. 7 of title 10, by the administrator of the estate of Richard W. Redding, hereinafter referred to as Redding. One action was brought against Picard Motor Sales, Inc., the registered owner of an automobile in which it is alleged that Redding was a passenger at the time of his death. The other was brought against Edmund Tucker, alleged to have been the operator of the motor vehicle in which Redding was a passenger. The cases were tried together to a justice of the superior court sitting with a jury, and in each case a verdict was returned for the plaintiff in the amount of $35,000. The subsequent motions of the defendants for a new trial in each case were denied, and they are now prosecuting their respective appeals to this court.

It is not disputed that in April 1962 Redding and defendant Tucker had gone to the place of business of Picard Motor Sales, Inc., hereinafter referred to as Picard, a dealer in MG automobiles, so called, Redding being interested in the purchase of an MG automobile. At Picard's, Redding, accompanied by Tucker, took a 1961 MG automobile out for a road test with the consent of the manager of defendant corporation. The testimony of the manager was that at the time Redding left the salesroom for the road test, he was driving the vehicle. A short time thereafter, while the car was proceeding southerly on Route 146, it crossed the median divider strip and came into collision with another vehicle proceeding in a northerly direction in the northbound lanes of that highway. It appears that Redding was killed instantly and that Tucker was removed from the car in an unconscious condition and taken to a hospital.

The defendant Picard contends that the trial justice erred in denying its motion for a new trial on the ground that the verdict was contrary to the weight of the evidence. It argues that in the record there is evidence that the automobile was delivered into the possession of Redding under the terms of a contract of bailment and that the statutory agency provided for in G.L.1956 § 31-33-6, as amended, does not applywhere the delivery of possession of a motor vehicle is pursuant to a bailment thereof. Goulet v. Coca-Cola Bottling Co., 83 R.I. 310, 116 A.2d 178. It is clear from the decision of the trial justice on the motion that she sustained the verdict of the jury against this defendant on the ground that Redding had the automobile with the consent of the sales manager as agent for defendant Picard, and not as a bailee.

It is well settled that on a motion for new trial based on the ground that the verdict is contrary to the weight of the evidence, the decision of a trial justice will not be disturbed by this court unless it is shown that the decision was clearly wrong. Labbe v. Hill Brothers, Inc., 97 R.I. 269, 197 A.2d 305. In that case was said that one attacking such a decision has the burden to show, in order to prevail thereon, '* * * that the trial justice either overlooked or misconceived some relevant and material evidence on a controlling issue.' The defendant Picard specifically argues that the trial justice overlooked or misconceived evidence adduced through the testimony of its sales manager and defendant Tucker. This evidence tended to establish that the car was delivered to Redding in order to permit him to drive the car over the highway for the purpose of testing it with a view to its purchase of found satisfactory.

An examination of the transcript discloses that Mr. Long, defendant's sales manager, testified that Redding had visited the agency some two weeks prior to the date of the accident, had talked about the purchase of an MG, and had taken two cars out for road tests. Long testified that on those two occasions he had gone with Redding; and he observed that Redding operated this type of automobile compently. He testified further that on April 13, the day of the accident, Redding returned to the salesroom in the company of Mr. Tucker and looked again at the two MG's. Mr. Long had a conversation with Redding, and as a result thereof permitted him to take the car out for a road test; he also testified that Mr. Tucker went along with Mr. Redding. Mr. Redding returned in a short time and asked to be permitted to try the 1961 MG, which he had also driven some two weeks before. He Purchasing that particular car and, having purchasing that particular car and, having been given permission to take it, left the salersroom, Redding driving the car with Mr. Tucker riding in the passenger's position.

The testimony of Mr. Tucker was that he had accompanied Redding to the salesroom on the day of the accident and that he was not interested in buying a car, being the owner of a 1961 Ford Falcon. He testified that Redding had talked with Mr. Long about buying a car and that he had gone with Mr. Redding when he road tested the 1954 MG and that when they returned, Mr. Redding asked to be allowed to test the 1961 car. At this time Mr. Long consented to Redding's testing the car and suggested that Tucker get in and go with him. It was on this trip that the accident happened.

In passing on the motion, the trial justice rejected the testimony of Mr. Tucker as being 'not worthy of belief.' From the testimony of Mr. Long relating to the arrangements under which Redding had taken the car, she inferred that Mr. Long had merely consented to the use of the car by both Redding and Tucker. She went on to point out that in the circumstances Tucker would have been an agent of defendant Picard and, if he were driving, Picard would thereby become liable for the death of Redding. On this basis she denied the motion for a new trial.

The inference drawn by the trial justice that the transaction constituted only a consent to operate and not an agreement for the bailment of the car is open to attack on the ground that its probative force is negatived by the probability inhering in other reasonable inferences that might be drawn from the same testimony. In Labbe v. Hill Brothers, Inc., supra, we made it clear that it is within the province of the trial justice to resort to the inferentijal process to establish legal proof. We went on to say in that case: 'It is our opinion that the probative force of the selected inference may be negatived by a showing of the susceptibility of the evidentiary fact to one or more inferences that have probability of such degree as to negate the probability of probative force in the inference selected. But the mere existence of contrary inferences in which probability inheres is not controlling on the acceptance by the trial justice of one of such inferences as probative of the fact in issue.'

The question before us then on this motion is whether the probative force of the inference of the granting of consent within the purview of the statute creating an agency in the operation of motor vehicles is negated by the degree of probability inhering in the contrary inference that the car was delivered into the possession of Mr. Redding pursuant to an agreement of bailment. Again referring to Labbe v. Hill Brothers, Inc., supra, we not that we discussed therein the question of when the existence of an alternate inference which could be drawn from evidentiary facts substantially negates the probative force of the inference that was selected by the trial justice. We said that such an argument '* * * poses the question whether the existence of alternate inferences that could be drawn from the evidentiary facts substantially negates the probative force of the inference that was selected by the trial justice. Viewing the inference in this light, we are of the opinion that the question...