Rockwood v. Belliveau ( 1934 )

CHURCHILL, J.

Heard on motion far a new trial filed by the defendant after a verdict for the plaintiff for $17,009.

Calvin Rockwood, husband of the plaintiff, was struck and killed by an automobile owned by the defendant and operated by one Gaza, on April 26, 1934. The accident happened in the Tillage of Chepachet.

The defendant’s ear was on its way from New Bedford to Springfield. The defendant was seated in the rear .seat. With Mm in the rear seat was a woman companion and another woman sat in the front seat iat the right of the driver. These four persons were all the occupants of the car.

There was no question of the due care of Calvin Rockwood, nor was there any question as to the negligence of the defendant.

The defendant filed a special plea under Chap. 2046, Public Laws of Rhode Island, January Session 1933, in which he sets up the defence that he was not responsible for the acts of the driver of the car.

Ait the trial ithe defendant took the position th/at he never expressly authorized Gaza to drive the car and that while he was in the car, during the entire trip from New Bedford to the scene of the accident, • he was intoxicated to such a degree that he was incapable of giving his consent to the driving of the car by Gaza.

All four of the persons in the car met in New Bedford on the day of the accident and partook of liquor, and then 'started for Springfield. One of the women testified that while at a resort where the four had congregated, it was decided to go to Spnngfielcl; that Belliveau came out and, although drunk, got into the ear unassisted; that G-aza said, “I am going to drive”; that Belliveau then got into the back seat. The woman who sat on the rear seat with Belliveau testified that she and Belliveau tallied together and that Belliveau and Gaza talked together, although 'She could not give any specific portion of the conversation. The woman who sat on the front seat testified tha,t she heard a few words between Belliveau and Gaza during the trip and that half an hour before the accident took place, Belliveau asked Gaza to stop the car, saying, “Jack, Stop, I want to get out”; both he and Gaza got out of the car, were gone about five minutes and returned.

Under the facts developed in the case, the jury were not bound to believe either Gaza or Belliveau and were fully justified in not believing either of them. Under all the testimony the jury were warranted in finding that ait all times during the trip the defendant was sufficiently sober to consent to the driving of the car by Gaza. The verdict on this issue is in accord with the evidence.

The verdict was for $17,000.

Calvin Rockwood was 28 years of age and had an expectancy of life of 35.69 years. Previous to 1932 he had been employed as a shoemaker in a shoe-shop in Webster, Massachusetts, and earned from $35 to $40 a week. The shop closed 'in 1932 and then he had various jobs in East Greenwich and Uxbridge, driving a truck, doing odd jobs when unemployed during the winter, working at a gasoline station, and in Uxbridge working in the dye-room at the Stanley Woolen Company. In these various employments his pay averaged from $28 a week to $18 a week, when he was working at the Stanley Woolen Company. The Stanley Woolen Company closed in November, 1933, and he then became a CWA worker,at $15 a week, was transferred to another relief department at '$12 a week and finally, on April 1, 1934, was working on a relief project at $8.20 for two days a week and, as his wife testified, nmde about $10 more a week doing odd jobs and peddling quahiaugs. The testimony as to his expenses is somewhat meagre but would warrant a finding that such expenses ran from about $7 to $8 a week.

It is fair to infer from the testimony that Rockwood was' an industrious, hardworking man, who was anxious and willing to work at anything to which he could turn his hands. Whether he would ever have returned to his 'old scale of wages as a shoemaker in Webster, or whether at any other employment he ever would have received that amount, are matters wrapped in total obscurity and are entirely speculative.

While it is true that in estimating damages 'the jury were not obliged to take the exact amount lie was earning at the itinie óf Ms death as a basis on which to estimate Ms earning capacity in the future, yet tbe only reliable testimony we have on wbicb tbe jury was reasonably warranted to rely is that relating to bis earning capacity, say, from 1932 to the date of his death.

For plaintiff: John R. Higgins & Silverstein. For defendant: Eugene R. Gilmar-tin.

It seems to the Court that tbe verdict is excessive, if the damages are measured by any standard outside of the Sheerest speculation. Tbe size of the verdict is probably accounted for by the character of tbe defence that was interposed and tbe shocking circumstances attending the death of tbe deceased. These two factors would have inflamed the minds of any ordinary jury.

A new trial is granted on all of the issues unless the plaintiff, within eight days, remits all of tbe damages in excess of $10,000.