Santoro v. Bickford , 229 Mass. 357 ( 1918 )

Crosby, J.

The plaintiff, while a traveller on foot upon a public way, was struck and injured by a motor car owned by the defendant and operated by one Munroe. There was evidence from which the jury could have found that the plaintiff was in the exercise of due care and that his injuries were due to the negligence of Munroe. The only question presented is whether the jury would have been warranted in finding that Munroe was acting as the servant or agent of the defendant at the time of the accident.

The defendant was in the employ of the Kelsey Company as general manager and was its vice president. A part of his duties as general manager was the supervision of ten lunch rooms in Boston; in connection with that work he used the motor car which was operated by Munroe at the time of the accident. Munroe also was in the employ of the Kelsey Company as assistant manager, and there was evidence that it was his duty to go to the various lunch rooms every day or every night, get from them the cash receipts of the day and deliver them to the company at its main office. The defendant testified that he occasionally went round with Munroe when the receipts were collected “but that [it] was Munroe’s business generally;” and that, “when Munroe made these trips round to the ten lunch rooms, he drove my automobile frequently and he was driving my automobile on one of these trips when this accident happened.”

From the foregoing and the entire evidence, it is manifest that both the defendant and Munroe were servants and agents of the company acting in different capacities; and, while at the time of the accident Munroe was using the defendant’s car with the consent of the latter, there is no evidence whatever that at that time Munroe was acting as the servant or agent of the defendant; he was using the car while in the employ of the company in the performance of his duties as assistant manager. The testimony of the defendant, that at the time of the accident Munroe was acting under his (the defendant’s) general directions, does not warrant a finding that he was in the employ of or acting for the defendant; nor was the fact that he reported the accident to the defendant evidence that he was the defendant’s agent.

This court held in the case of Higgins v. Bickford, 227 Mass. 52, that similar evidence was not sufficient to charge the defendant with Munroe’s negligence. In that case there was further evidence introduced upon the question of the defendant’s responsibility for the acts of Munroe. The defendant in that case was 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.’ ” Upon the evidence quoted, together with the other evidence in the case, this court said that Munroe could be held to have been acting for the defendant. The evidence quoted and upon which it was decided that Munroe could be found to have acted as the defendant’s agent in Higgins v. Bickford, supra, was lacking in the case at bar, and distinguishes it from that case and is decisive against the plaintiff’s contention.

In accordance with the terms of the report the entry must be

Judgment for the defendant.