Conversions & Surveys, Inc. v. Roach, 4718.

• Decision Date: 22 May 1953
• Docket Number: No. 4718.,4718.
• Citation: 204 F.2d 499
• Parties: CONVERSIONS & SURVEYS, Inc. v. ROACH.
• Court: U.S. Court of Appeals — First Circuit

204 F.2d 499 (1953)

CONVERSIONS & SURVEYS, Inc. v. ROACH.

No. 4718.

United States Court of Appeals First Circuit.

May 22, 1953.

Thomas H. Mahony, Boston, Mass. (Edward F. Mahony, Boston, Mass., on brief), for appellant.

Timothy H. Donohue, Boston, Mass. (Richard M. Sullivan, Boston, Mass., on brief), for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

MAGRUDER, Chief Judge.

Nora Roach, as administratrix of the estate of Michael Roach, deceased, late of Stoneham, Massachusetts, brought in the court below a tort action against Conversions and Surveys, Inc., a New York corporation. The complaint charged that on January 26, 1952, the defendant, by its servant and agent while engaged in the business of the defendant, so negligently operated a motor vehicle on the streets of Malden, Mass., as to run into the intestate and cause his death. There were two counts, one for conscious suffering and medical expenses incurred prior to the death, and the other for wrongful death. In its substantive aspects, the case of course is governed by the statutory and common law of Massachusetts, as applied in the courts of the state.

At the close of the plaintiff's case defendant moved for a directed verdict on several grounds, one of which was that there was no evidence that the motor vehicle, at the time of the accident, was being operated by any person for whose operation the defendant was legally responsible. The motion was denied, and the case went to the jury, which returned plaintiff's verdicts on each count. Defendant then seasonably moved under Rule 50(b), Fed.Rules Civ.Proc. 28 U.S.C.A. for judgment notwithstanding the verdicts. This motion was also denied. The court entered judgment for the plaintiff pursuant to the verdicts, and defendant appeals.

The uncontested evidence disclosed the following situation: At the time of the accident the motor vehicle in question was being driven by one Sevigny. The car belonged to Sevigny and was registered in his name. He had bought it in September, 1951, defendant having contributed nothing toward the purchase price. Sevigny bore the expenses of upkeep, maintenance and operation of the car, and also of a policy of liability insurance. Since March, 1951, Sevigny had been in the general employ of defendant as a job accountant, and at the time of the accident his headquarters was at the Northampton, Mass., office of the defendant. He was in charge of the payroll of defendant's employees in the area, and was responsible for the personnel records of the men, the handling of insurance, the payment of invoices, collection of accounts receivable, etc. His duties required him to move about somewhat, collecting time sheets from men out in the field and delivering pay checks to them. Defendant told Sevigny that he could use his own car on company business as far as was necessary, and that he would be reimbursed at the rate of six cents a mile for the mileage so traveled, provided he furnished defendant's New York office with a certificate reciting that the car had been properly covered by insurance.

On January 26, 1952, Sevigny needed assistance at the Northampton office in completing the personnel records for the month, which had to be forwarded to the New York office. He made arrangement with defendant's office at Malden, Mass., to obtain the assistance of Miss June H. Karlson, a clerk employed in defendant's office at Malden. Sevigny drove in his car to the Malden office, picked up Miss Karlson and set out for Northampton for the purpose aforesaid. The accident occurred while they were proceeding on Main Street, Malden, en route to Northampton.

Whatever the law may be in other jurisdictions, the Massachusetts cases clearly indicate that on the above facts, as a matter of law, defendant would not be legally liable for the negligence of Sevigny, if any, in the operation of the car; and that a verdict for the defendant would be directed in a state court. Pyyny v. Loose-Wiles Biscuit Co., 1925, 253 Mass. 574, 149 N.E. 541; Khoury v. Edison Electric Illuminating Co., 1928, ...