Gardner v. Farnum ( 1918 )

Crosby, J.

These are two actions of tort — one to recover for personal injuries received by the minor plaintiff, the other to recover for services and expenses incurred by the adult plaintiff — arising out of an automobile accident.

The automobile in question was owned by the defendant and was operated by one Anderson, a chauffeur in the general employ of the defendant. It was admitted that the minor plaintiff was in the exercise of due care and that Anderson was negligent; the only question before us is whether there was any evidence to show that Anderson was acting within the scope of his employ-' ment, at the time of the accident.

The defendant, a summer resident of Magnolia in the city of Gloucester, had left there with his family before the accident occurred. At the trial in the Superior Court he offered no evidence; and the case was,submitted to the jury upon the testimony presented by the plaintiffs, at the close of which the presiding judge refused to order verdicts for the defendant.

The undisputed evidence showed that Anderson and his wife lived at the Mallard House in Magnolia, after his employer’s family left at the end of the summer, and that the automobile was taken away at the end of each season; that on the morning, of the accident Anderson drove the car to Gloucester and while there drank liquor at different places; that he then “went to do an errand” and returned with a toy sail boat which he put in the back of the machine; that he was under the influence of liquor, and while returning to Magnolia the accident occurred; that later on the same day he took his wife and some other persons to Boston in the automobile.

It appeared that the defendant had two daughters — eight and two years old respectively — that Anderson had no children; ■ and that the toy boat was an elaborate and expensive one. The plaintiff contends that the evidence was sufficient to warrant a finding that in going to Gloucester and purchasing the boat, Anderson was engaged in the performance of an errand for his employer, — that he had been sent there to purchase the boat for the defendant’s daughters, and he was returning from the performance of that errand when the accident occurred.

The fact that the defendant owned the automobile is not enough to show that Anderson was acting within the scope of his employment at the time of the accident. Hartnett v. Gryzmish, 218 Mass. 258, 262. Nor was the evidence that the defendant owned the automobile and that the chauffeur was in his general employ sufficient to show that he (the chauffeur) was engaged in his master’s business. Hartnett v. Gryzmish, supra. Poirier v. Terceiro, 224 Mass. 435.

The evidence fails to disclose that the use of the car by Anderson was an incident of his employment, as was held in Reynolds v. Denholm, 213 Mass. 576. Campbell v. Arnold, 219 Mass. 160. There is an entire absence of testimony indicating that Anderson purchased the toy boat for any child of the defendant, or if such was his purpose, that the defendant or any member of his family ■ ■directed it or knew that such purchase was to be made; nor can .it reasonably be inferred, upon any view of the evidence, that he -was engaged at the time'of the accident on any business or errand for his employer, — to decide otherwise would be to reach a conclusion based wholly upon speculation and- conjecture. Perlstein v. American Express Co. 177 Mass. 530. McCarthy v. Timmins, 178 Mass. 378. Trombley v. Stevens-Duryea Co. 206 Mass. 516. Hartnett v. Gryzmish, supra. Marsal v. Hickey, 225 Mass. 170. The case of Heywood v. Ogasapian, 224 Mass. 203, and others cited and relied on by the plaintiff, are plainly distinguishable from the case at bar. See D’Addio v. Hinckley Rendering Co. 213 Mass. 465; McKeever v. Ratcliffe, 218 Mass. 17; Donahue v. Vorenberg, 227 Mass. 1.

The plaintiff also contends that the jury would have been justified in finding that at the time of the accident the chauffeur was on his way to Boston to ship the automobile to Chicago, in accordance with the defendant’s instructions. The difficulty with that contention is that there is no evidence to support it; besides, in going from Magnolia to Gloucester, Anderson travelled in the opposite direction from Boston. If he went to Gloucester to obtain liquor he could not be found to be engaged in his master’s business. McCarthy v. Timmins, supra.

There is nothing to indicate that the failure of the plaintiff to find Anderson or his wife on the first day of the trial that they might be subpoenaed as witnesses, was due to any act on the part of the defendant.

As verdicts for the plaintiffs were not warranted, in view of the evidence most favorable to them, it follows that the defendant’s requests to direct verdicts in his favor should have been given.

Exceptions sustained.