Higgins v. Bickford , 227 Mass. 52 ( 1917 )

Braley, J.

While crossing a public way on foot the plaintiff, whose due care is not questioned, suffered personal injuries, as the jury could find, through the negligence of one Munroe who was in physical possession of and was driving the defendant’s motor car.- The question for decision is whether there was any evidence for the jury that at the time of the accident Munroe was acting as the defendant’s servant or agent.

The jury would have been warranted in finding on the entire evidence, that the car was used, not only for pleasure driving by the defendant and by Munroe with the defendant’s permission, but also in making collections and in supervision of "lunch rooms” connected with the business of the Kelsey Company of which the defendant was general manager and Munroe the assistant manager. It is clear that, if the car was being used for the first purpose, no serviential relation was shown. Trombley v. Stevens-Duryea Co. 206 Mass. 516. But the jury further could have found on the defendant’s testimony, “that Munroe took all orders from the defendant and was under his general charge.” It is true he also testified, that when Munroe "reported the accident to him, Munroe did not have any collections belonging to the . . . company with him,” and that he “could not tell whether” the car was being used “for any particular purpose at the time of the accident,” and “that he had no recollection as to what Munroe was using the automobile for on the day of the accident, except what he might infer from the custom between them.” If no further evidence had been introduced the plaintiff still had failed to show that the defendant was accountable for Munroe’s negligence. But, having been asked, “Bearing in mind his custom, is there any doubt in your mind that he was using it on your account that night?” the defendant replied, "No doubt whatever in my mind but what that was what he was using it for.” “ On your account?” “Yes, I suppose so.” If the jury believed these statements, as they were at liberty to do, there was evidence from which in connection with their business relations to each other, and to the company in the transaction of whose business the motor car was used as narrated by the defendant, they could find that Munroe acted, not for his own personal enjoyment or in any affair of his own, but in behalf of the owner, whatever the owner’s purpose then may have been. The case upon these findings would have stood precisely the same as if the defendant himself had been negligently operating the car when the accident occurred, and the verdict in his favor was ordered improperly. Ouimette v. Harris, 219 Mass. 466, 470, and cases cited. Niland v. Boston Elevated Railway, 208 Mass. 476, 478, and cases cited. A majority of the court are of opinion that the order must be

Exceptions sustained.