Davis Pontiac Co. v. Sirois

Baker, J.

This is an action of trespass on the case for negligence arising out of a collision between two automobiles. In the superior court the defendant’s demurrer to the declaration was sustained and to such ruling the plaintiff has duly prosecuted a bill of exceptions to this court.

The declaration, which was filed January 11, 1952, alleged among other things that plaintiff, a corporation, was the owner of an automobile which at the time and place of the described accident was being operated by Edward L. Corrigan “with the consent and knowledge of the plaintiff but not as its servant or agent,” and that such automobile was damaged when it collided with a car negligently operated by the servant and agent of defendant. Although the declaration alleged that the plaintiff itself exercised due care, there was no allegation therein that at the time of the accident the operator of its car was in the exercise of such care and none that he had furnished evidence of financial responsibility in accordance with the applicable statute.

The demurrer sets out three grounds but the one chiefly pressed is to the effect that plaintiff in and by the allegations of the declaration has not stated a cause of action against defendant. The instant case, therefore, is before us solely on an issue of pleading. The first question for consideration is whether plaintiff’s declaration sufficiently sets forth a cause of action without alleging that the operator of plaintiff’s car was free from negligence, in view of public laws 1950, chapter 2595, article XIX, section 1, which reads as follows:

“Civil Liability of Owners and Operators of Motor Vehicles

Sec. 1. Imputing negligence or willful misconduct of operator to owner. — Whenever any motor vehicle shall be used, operated, or caused to be operated upon any public highway of this state with the consent of the owner, or lessee, or bailee, thereof, expressed or implied, the operator thereof, if other than such owner, or lessee, or bailee, shall in case of accident, be deemed to be the agent of the owner or lessee-, or bailee, of such motor vehicle unless such operator shall have furnished evidence of financial responsibility in the amounts set forth in section 7 of chapter 98 of the general laws, 1938, as amended, prior to such accident; and for the purposes of this act the term ‘owner’ shall include any person, firm, co-partnership, association or corporation having the lawful possession or control of a motor vehicle under a written sale agreement. Evidence that at the time of such accident or collision the motor vehicle was registered in the name of the defendant shall be prima facie evidence that it was being operated with the consent of said defendant, and absence of such consent shall be an affirmative defense to be set up in the answer and proved by the defendant.”

The plaintiff contends that the provisions of that entire section are directed solely to the defendant in a pending case. It argues exhaustively that the title of the act, the statement therein that the agency created by the statute arises only when the operator has not furnished evidence of financial responsibility, the requirements for proof of registration of defendant’s motor vehicle, the necessity for defendant to file a special plea, and his burden of proof under the statute show convincingly that the legislature only intended to require the furnishing of evidence of financial responsibility by the actual operator of the car and to provide other remedial changes in the law so far as a defendant was concerned, but that none of such provisions was intended to apply to a plaintiff.

On the other hand defendant contends that the statute is in derogation of rights under the common law and that it not only establishes certain affirmative burdens upon a defendant, as the plaintiff argues, but also was clearly intended as a “two-way” provision to govern all owners and operators with the owner’s consent whether they might be plaintiffs or defendants. He argues that the language of the statute is clear, unambiguous and broader in' scope than plaintiff urges and therefore he concludes that under the settled common-law practice in this state an allegation of due care by the operator of plaintiff’s automobile was necessary for sound pleading. The answer to this phase of the problem depends upon the intent of the legislature in enacting the statute.

We are not called upon to interpret the statute in all its aspects but solely as it affects the declaration in the instant case. None of the reported cases involving any of the preceding forms of the instant statute presented the precise issue now before us. We note that generally speaking in all such cases the questions at issue arose out of or were related to matters of evidence at a trial on the merits and not to a preliminary question of proper pleading, as here.

In our opinion the present statute, though in form appearing as one paragraph, is nevertheless clearly divisible into two severable parts. The first part, namely, the first sentence of the paragraph, plainly and unambiguously creates a statutory relationship of principal and agent between the owner and one who is operating his car with his consent, unless the operator previously to the accident has furnished evidence of financial responsibility in a certain manner and amount as provided by law. That language nowhere, directly or indirectly, mentions or is confined to a defendant. On the contrary it clearly expresses a policy as to all owners and operators with the owner’s consent.

It constitutes a declaration of policy and a substantive change in the law which was explained and construed in Kernan v. Webb, 50 R. I. 394, 398, where the language of the first statute of 1927 was involved. At that time the same substantial language was in the law and was presented for construction. The court there held: “If the use is with consent, the intent of the statute is to secure greater protection to the public from the operation of motor vehicles unfit for use or when negligently driven. The statute in question enlarges the legal liability of the owner who intrusts his motor vehicle to another with the privilege of using it. The language of the act is the operator 'shall be deemed to be the agent of the owner,’ in other words, shall be considered as and judged to be the agent. * * * The statute is intended to be operative and to impose a liability when there is an accident and there is no existing agency. The foundation of this statutory liability of the owner is the permission given to another to use an instrumentality which, if improperly used, is a danger and a menace to the public.” What was said as to the policy, intent, meaning and effect of the language in the law at that time is equally applicable to the first part of the instant statute since the language there was substantially the same as the first sentence of the instant statute.

No purpose will be served by attempting to analyze and compare in detail the law as discussed in the cases intervening between the Kernan case and the present time. Much confusion results from the multiple amendments of the statute at different times and from the decisions made on existing particular. facts, sometimes after a change in the law had become effective under such amendments. It is sufficient for our purpose to note that by later amendment the pertinent language, which was passed upon in Kernan v. Webb, supra, was dropped from the statute. However, after several other amendments had been made from time to time, the statute was again amended in 1940 by bringing back essentially the same language which originally appeared in the law and was passed upon in the Kernan case.

It should be noted that just prior to 1940 the statute was in one sentence and was essentially and expressly limited to whenever “an action is begun to recover damages” resulting from an accident involving the use of such a motor vehicle; that the 1940 amendment dropped the above-quoted limitation and substituted the comprehensive language originally in the act when the Kernan case was decided; and that the provision referring to the effect of certain evidence on a defendant at the time of trial, which was a part of the one sentence before 1940, was separated by a period and made an independent sentence in the 1940 amendment. As thus amended the section remained the same under the general motor vehicle act, P. L. 1950, chap. 2595, article XIX, section 1.

If the legislature intended to restrict the meaning and effect of the amendatory language in the 1940 statute to apply solely to a defendant in a pending case, it certainly knew how such intention should be stated. The last sentence of the section was already in the law and it was expressly limited by and made applicable to a “defendant.” In our judgment if the same limitation had been intended to apply also to the first part, which was being added by that amendment, the legislature would not have used the plain, comprehensive language specifically referring to “Imputing negligence or willful misconduct of operator to owner” and the further language that an operator “with the consent of the owner * * * shall in case of accident, be deemed to be the agent of the owner * * It would be more reasonable to expect the addition of some qualifying words restricting the application of the amendment to the imputation of the negligence of an operator to a defendant owner.

Having in mind the order of time when the two parts of the present statute respectively came into the existing law, the plain and comprehensive language used in the 1940 amendment, the interpretation given to such language in the Kernan case, the different purpose and effect of each part or sentence of the statute, as gathered from the express language used, and finally the actual separation of the parts by a period, we are of the opinion that the language of the 1940 amendment, neither directly nor by necessary implication, requires a construction that the provisions now appearing in the first portion of the section were intended to be restricted or limited solely to a defendant in a pending-suit. In our view the legislature intended to create in the stated conditions a statutory agency based upon consent of the owner, and the plaintiff here by the allegations of fact in the declaration brought itself within the purview of such statute.

The next question to consider is whether plaintiff has stated facts sufficient to exclude itself from the operation of the statute. The plaintiff first has alleged its ownership and registration of the car, and its consent to the operation thereof by another, and has not alleged that the operator had furnished evidence of financial responsibility. Therefore the declaration on its face alleges the facts from which the law expressly creates a statutory agency where no agency at common law existed. Since the declaration thus states facts amounting to> a statutory agency, the plaintiff under our well-established practice must also allege the agent’s freedom from contributory negligence. This it has not done.

Furthermore, having admitted by allegations all the elements from which the statute creates an agency by operation of law, plaintiff then makes the allegation that the operator was not the agent of the plaintiff. In the peculiar circumstances this amounts to an untenable conclusion contradictory of that which is imposed by law, and therefore is not a fact well pleaded which would be admitted by the demurrer. The plaintiff itself has not set forth any facts to show what was its relationship with the operator, or how the latter had obtained the car and the owner’s consent, or for what purpose he was given the car, or what he was doing at the time of the accident. It merely assumes by a conclusion of its own interpretation of law, without allegation of supporting facts, that it may thereby nullify the effect of the other proper allegations which create an agency according to the express terms of the statute. This court therefore is not informed of necessary facts to determine whether or not he differs from a statutory agent as contemplated by this amended statute.

Certainly the legislature by the language of the 1940 amendment intended to make some kind of a statoutory agency in derogation of the common law. Without restricting ourselves at this time to determining the limitations, if any, of such agency, it is sufficient to hold that under any interpretation of the language here used there was intended and created at least a statutory agency of the type that was explained in Emond v. Fallon, 56 R. I. 419. Assuming that in order to avoid the effect of this statute the plaintiff might plead facts by anticipating defenses, it would have the burden to plead facts sufficient to exclude every relationship which reasonably could be contemplated as coming within the statute. It has not done so in this declaration and therefore the demurrer was properly sustained.

The cases of Thompson v. Sides, 275 Mass. 568, Jewel Mills v. Gabriel, 284 N. Y. 755, and Christensen v. Hennepin Transportation Co., 215 Minn. 394, which plaintiff has submitted are helpful but none of them is based upon a statute such as ours. Nor are they decided on an issue of pleading as here. In the Thompson case, so far as appears from the opinion, the provision in that statute does not appear to be entirely the same as in the statute here. However, assuming that its language might in effect be considered similar, nevertheless that court was concerned with the interpretation of a statute which referred in express terms to a defendant only. The Jewel Mills and Christensen cases, both of which recognize authority contrary to their conclusions, were discussed and distinguished by persuasive reasoning in the case of National Trucking & Storage Co. v. Driscoll, D. C., 64 A.2d 304.

In our judgment the last-mentioned case was decided by the District of Columbia court under a statute which more nearly resembles ours than the others called to our attention. Such court found that the statute had a twofold purpose, namely, to furnish a financially responsible defendant in case one driving a car with the owner’s consent negligently caused damages to another, and to promote more careful driving. The court at page 307 of its opinion stated: “We find nothing in the act to indicate that the Congress intended that a person driving an automobile with the owner’s consent is the owner’s agent when the owner is being sued, but is not his agent when the owner is suing. When the owner is being sued his liability is based solely upon his so-called vicarious responsibility on the theory that the negligence of the driver is imputable to him because he gave permission to the driver to operate the car. We can not understand why the negligence of the driver is not imputable to the owner when the situation is reversed and the owner is suing. In both situations the car is being driven with the consent of the owner.”

After considering the history, purpose and language of our present act as a whole, it is our opinion that the language does not limit its application only to a situation where the owner of a motor vehicle is being sued, but that it also applies in appropriate circumstances when a plaintiff owner is bringing action as in the instant case. In our judgment the reasoning in the case of National Trucking & Storage Co. v. Driscoll, supra, is sound.

Since in the circumstances alleged we have construed the statute as creating a statutory relationship of principal and agent between plaintiff and the operator of its automobile with its consent, it follows from the general principles of the law of agency that in the absence of other proper allegations the negligence, if any, of such operator may properly be imputed to his principal, the plaintiff. There was a duty therefore on the plaintiff in the circumstances here to also allege that the operator of its automobile was in the exercise of due care when the collision with the defendant’s car occurred. As no- such allegation was contained in its declaration, the trial justice was correct in ruling that defendant’s demurrer should be sustained.

The plaintiff’s exception is overruled, and the case is remitted to the superior court for further proceedings.