Chute v. Morey , 234 Mass. 387 ( 1920 )

Jenney, J.

This is an action of tort to recover damages alleged to have been caused by á collision between automobiles on a public way. The trial judge submitted the case to the jury, who returned a verdict for the plaintiff. It is cbnceded that the only question is whether there was any evidence that the defendant’s automobile at the time of the accident was operated by a person for whose negligence the defendant was responsible. The due care of the plaintiff and the negligent operation of the defendant’s automobile are admitted.

There was evidence that on the day of the accident the defendant took his automobile to the place of business of the Vulcan Garage Company, where one Elderkin was employed; that he told Elderkin that there was “something wrong” with his car and that there was a “skip” in his motor, and further directed him “to take the car out.” Elderkin also testified that the defendant told him “to fix it [the car]; take it out and try it.” The defendant was president of the company, and it did not appear what services, if any, were performed by him in connection with the company’s business. Elderkin’s duty as an employee was to repair trucks belonging to the company. He testified that in addition to the instructions givéh by the defendant, later but before the accident, one Norman the superintendent of the company directed ' him to take out the car. Elderkin was paid by the company, and its garage was not one “where private individuals could go and have their cars repaired.” No charge was made either by Elder-kin or by the company, for any services relating to the automobile. The accident happened while Elderkin was operating the car for the purpose of trying it.

This evidence justified a finding under appropriate instructions that Elderkin did not act under his general employment, and that with his consent or acquiescence he temporarily had become the servant of the defendant. Delory v. Blodgett, 185 Mass. 126. Shepard v. Jacobs, 204 Mass. 110. Generous v. Hosmer, 216 Mass. 26.

It was for the jury to determine whether Elderkin acted under the instructions of the.superintendent as the representative of. the company, or for the defendant with the consent of the superintendent.

The case was properly submitted to the jury, and the defendant’s exception must be overruled.

So ordered.