Nicholson Ex Rel. Nicholson v. Filipino Federation of America, Inc. ( 1948 )

I concur in the result but I prefer that my concurrence be based upon the rule that "after the party alleging the agency has made a prima facie case of agency against the principal, any declarations made by the agent in the prosecution of, and relative to the business contemplated by such agency, are admissible against the principal."¹

There was sufficient independent evidence, exclusive of his admissions to the police officer, to sustain a finding that Gabatero was an employee of the defendant and that the service in which he was engaged immediately prior to the accident was within the course or scope of his employment. But in order to establish liability on the part of the defendant for Gabatero's alleged negligence, it was incumbent upon the plaintiff to establish not only that the service performed by Gabatero was within the course or scope of his employment but also that the manner of its performance, viz., by means of the automobile involved in the accident, was within the course or scope of his employment. This the plaintiff sought to do by showing (a) that the ownership and control of the automobile was in the defendant, and (b) if not, that it was used by Gabatero in the performance of his duties with the defendant's consent, either express or implied. If ownership or control were proved, the presumption arose that its use was within the course or scope of the chauffeur's employment.² If, on the other hand, it appeared that the ownership or control of the automobile was in a person other than the defendant and that the chauffeur "either by express agreement or by some tacit arrangement, was in the habit of using [the automobile] in transacting the defendant's business"³ its use upon the particular occasion involved was within the course or scope of the chauffeur's employment. The "owner" and "legal owner" of the automobile in question was registered under the provisions of Revised Laws of Hawaii 1945, chapter 138, part II, in the names of persons other than the defendant but there was evidence to the effect that although the defendant was not the legal owner of the automobile it nevertheless had the right to use and exercised control over its use, admitting of the inference that the defendant, although not registered as such, was in fact either the "owner" or the "legal owner," the change in registration into its own name, pursuant to the provisions of section 7342, being the only step necessary to complete transfer of the vehicle. Failure to comply with the provisions of law relative to registration is made a misdemeanor.⁴ Hence the prerequisite of the rule "making a prima facie case of agency against the principal" had been met by the plaintiff.

There remains, however, to be considered the application of the final test of the rule, viz., whether the admissions to the police were made by the chauffeur "in the prosecution of and relative to the business contemplated by such agency." If so, they were admissible. If not, in my opinion, they had passed the res gestae, were not spontaneous explanations within theres gestae rule, hearsay and inadmissible.

The traffic code of the City and County of Honolulu, a certified copy of which is on file in the clerks' office, contains provisions applicable to the accident involved in the instant case which required Gabatero to stop, remain at the scene of the accident⁵ until he had complied with the provisions of the code in respect to giving information and rendering assistance⁶ and to make reports of the accident.⁷ The section of the code last referred to is quoted in the margin.⁸ The chauffeur's statement to the police officer was in legal effect a "report" of the accident within the requirements of the code to that effect. What the report must contain is not prescribed. But its contents to the extent that they are material to the accident are pertinent. Ownership and agency under the circumstances were material. The authority conferred by his principal to use the car upon the public streets included the implied authority to comply with the provisions of the traffic code and, in the event of an accident requiring a report, to make such report. When the defendant constituted Gabatero its agent to operate the car, the traffic code imposing the duty of reporting an accident became a part of the agency. "For that purpose [making a report] his agency continued by operation of law. When defendant appointed this agent, presumptively, he [it] knew that this was a duty of the agency imposed by law. Under these circumstances we cannot hold that, in making this report, he was not acting as the defendant's agent. His work was not completed until he had made this report."⁹

¹ Peck v. Ritchey, 66 Mo. 114, 118, quoted with approval in Barz v. Fleischmann Yeast Co., 308 Mo. 288, 271 S.W. 361; see also Wigmore, Evidence § 1078.

² Berry, Automobiles § 1352 and cases cited.

³ Patten v. Rea [S.C. 26 L.J.C.P. 235; 3 Jur. N.S. 892; 5 Wis. 689], 140 Eng. Rep. 554; see also Goodman v. Kennell, 1 M. P. 241 (not available in library but referred to in Patten v. Rea, supra, and Carl Corper Brewing Malting Co. v. Huggins,96 Ill. App. 144); Dillon v. Prudential Ins. Co., 242 P. 736 (Calif. Dist. Ct. of App.); Goldsmith v. Chesebrough, 138 Md. 1,113 A. 285; and noted in 57 A.L.R. 739; 2 Berry, Automobiles § 1385.

⁴ R.L.H. 1945, § 7348.

⁵ Rev. Ord. 1942, § 1283.

⁶ Id. § 1285.

⁷ Id. § 1288.

⁸ "Sec. 1288. Duty to report accidents. The driver of any vehicle involved in an accident resulting in injury to or death of any person, or total property damage to an apparent extent of twenty-five dollars or more, shall immediately or as soon thereafter as possible report such accident and later forward a written report of such accident to the police department.

"The police department may require any driver of a vehicle involved in an accident of which a report must be made as required in this section, to file supplemental reports whenever the original report is insufficient in the opinion of said department, and may also require witnesses of accidents to render reports to said department.

"The police department shall tabulate and analyze such reports and shall forward monthly copies summarizing same to the traffic safety commission."

⁹ Ezzo v. Geremiah, 107 Conn. 670, 142 A. 461, 465; see also Voegeli v. Waterbury Yellow Cab Co., 111 Conn. 407,150 A. 303.