Royal Steam Heater Co. v. Hilchey , 257 Mass. 512 ( 1926 )

Braley, J.

This is an action of tort for damages to the plaintiff’s automobile caused by a collision with the defendant’s truck on February 6, 1925, while the vehicles, passing over a public way, were approaching from opposite directions. The material allegations of the declaration are, in the first count “that while the automobile owned by it and operated by its servant or agent was being properly operated on the State highway in Westminster, between Gardner and Westminster on or about February 6, 1925, said automobile was run into and badly damaged by a truck owned by the defendant and operated by himself or his agent or servant; that said collision was caused by the negligent manner in which the defendant, or his agent or servant, operated said automobile truck”; and in the second count “that while the automobile owned by it and operated by its servant or agent was being properly operated on the State highway in Westminster, between Gardner, and Westminster on or about February 6, 1925, said automobile was run into and badly damaged by a truck owned by the defendant and operated by himself or his agent or servant; that said collision was caused by the fact that the automobile truck owned by the defendant and operated by him or his agent or servant was improperly equipped.”

The answer was a general denial, with an averment of the plaintiff’s negligence. There was evidence that the defendant’s truck, operated by a man in his employment, was being driven in his business. “An officer of the plaintiff testified that the driver of its car was in its employ; that Ms duties were to solicit orders and to make estimates on work. There was no further evidence as to his duties nor any evidence that he was performing any of them at the time of the accident.” The trial judge, without making specific findings, found generally for the plaintiff on conflicting evidence, and, the defendant being aggrieved by certain rulings and refusals to rule, the case was reported to the Appellate Division. The Appellate Division decided, “that, without passing specifically upon the other rulings given or demed, there was prejudicial error in the giving of the fourth request for rulings presented by the plaintiff, and, it further appearing that except- for such prejudicial error, judgment should properly have been entered for the defendant,” the following entry was ordered, “Judgment for the plaintiff reversed. Judgment for the defendant.” The plaintiff appealed.

The record states, that the driver of the plaintiff’s car, one Cameron, testified, “that he first saw the defendant’s truck when it was about seventy-five feet away; that he tried to turn out for it but could not do so; that the defendant’s driver tried to turn out but could not do so, and so they came together; that he knew there was going to be a collision and that he did not stop his car because he thought he could get out of the ruts and the driver of the defendant’s truck probably thought the same; that we (meamng both drivers) were really taking a chance.”

It was contended by the plaintiff, and the trial judge under its fourth request ruled, that “The words 'agent’ and 'servant’ in the plaintiff’s declaration are only descriptive of the driver and do not imply anytMng with regard to the scope of authority or the nature of what the driver was doing.” It is settled, that, where allegations in a declaration in an action of tort are not essentially descriptive of the cause of action, or so connected with it that no sound separation is possible, they need not be proved. “It need not aver a fact not required by law to be proved.” Downs v. Hawley, 112 Mass. 237, 242, 243, Litchfield v. Hutchinson, 117 Mass. 195, 198. G. L. c. 231, § 7, cl. 3. See Washburn v. R. F. Owens Co. 252 Mass. 47. It is plain that, if the words in the first and second counts, “and operated by its servant or agent,” are treated as merely descriptive, a cause of action is sufficiently stated. The ruling of the trial judge was right, even if he also gave the defendant’s second request, that the “plaintiff is bound by its declaration wherein it sets forth that its car was being driven by its agent and servant, and the phraseology as used in the plaintiff’s declaration is an admission binding upon the plaintiff.”

The questions, whether the collision was caused solely by the negligence of the defendant’s driver, or whether the negligence of the driver of the plaintiff’s- automobile contributed, or whether at the time he was acting within the scope of his employment, depended upon the credibility of the witnesses and the weight to be given to their testimony. The general finding for the plaintiff is a finding in so far as the questions were in issue that the negligence of the defendant’s driver caused the collision. Boston Supply Co. v. Rubin, 214 Mass. 217, 220. The decision of the Appellate Division is reversed, and an entry made of judgment to stand and report dismissed. Loanes v. Gast, 216 Mass. 197, 199.

So ordered.