Bachand v. Vidal

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Before QUA; WILLIAMS
• Citation: Bachand v. Vidal, 328 Mass. 97, 101 N.E.2d 884 (Mass. 1951)
• Decision Date: 15 November 1951
• Parties: BACHAND et, al. v. VIDAL et al.

Page 884

101 N.E.2d 884

328 Mass. 97

BACHAND et, al. v. VIDAL et al.

Supreme Judicial Court of Massachusetts, Berkshire.

Argued Sept. 18, 1951.

Decided Nov. 15, 1951.

J. N. Alberti, North Adams, M. Freedman, North Adams, for plaintiff.

J. M. Shea, Pittsfield, for defendant.

Before QUA, C. J., and WILKINS, SPALDING, WILLIAMS and COUNIHAN, JJ.

WILLIAMS, Justice.

This is an action of tort to recover compensation for personal injuries, consequential damage and property damage resulting from a collision of automobiles on Union Street, North Adams, on October, 11, 1947. The plaintiffs are Alcide Bachand, his wife Ida, and their three minor children, Ida, Alcide, and Edward. The defendants are Harvey J. Vidal and Emil J. Raczka. Of the thirty counts originally included in the plaintiffs' declaration ten alleging the joint negligence of both defendants were waived during the trial. The twenty remaining are counts for negligence against the defendants individually, alleging the receipt of personal injuries by all five plaintiffs, damage to the automobile of Alcide Bachand, and consequential damage to him through the injuries to his wife and children. After verdicts for the plaintiffs on all of these counts the cases are here on the exceptions of the defendants to the judge's denial of their motions for directed verdicts, motions to strike out evidence, and motion to discharge the jury.

There was evidence that about 11:30 P.M. on October 11, 1947, Alcide Bachand, accompanied by his wife and children, was driving his automobile in an easterly direction on Union Street at a point where there was approximately a six per cent upgrade. An automobile without lights and without an operator came downgrade from the opposite direction, collided with the Bachand automobile, and caused the injuries to its occupants and the damage to the automobile for which this action is brought. This driverless automobile was a '1930 Dodge Sedan' which had been purchased by the defendant Vidal on the afternoon of the accident. He testified that he used the automobile that evening to take his wife shopping and to make a personal social call. On returning he parked the automobile shortly before 11 P.M. in front of his house on Union Street headed downgrade with the right front wheel at a 'slight angle' against the curb. The 'body might have been a foot from the curb but he was positive the right wheel was up against the curb though he didn't look to see.' He did not leave any parking lights on and the doors were unlocked. He put the hand brakes on and left it in 'second gear.' He and his wife entered the house. Later he 'heard a gang of boys outside making a lot of noise * * * he did't look to see what they were doing; in about twenty minutes' as the result of a telephone call he went out and found his automobile had run down the hill and collided with the Bachand automobile about 250 feet from where he had parked it.

Although the testimony of Vidal as to the manner in which he parked the automobile was uncontradicted, the jury might, in whole or in part, disbelieve it. There was evidence from a passing autoist that she saw the automobile start to move and that there was no person near it at the time. It could be found on the evidence that it was more probable that the automobile started downgrade because Vidal had failed to exercise care in securing its position against the curb than from any independent cause which he could not reasonably have anticipated and for which he was not responsible. Litos v. Sullivan, 322 Mass. 193, 194-195, 76 N.E.2d 557; Kirsch v. J. G. Riga & Sons, Inc., 264 Mass. 233, 162 N.E. 355; See also Dorne v. Adams, 243 Mass. 438, 137 N.E. 650; Glaser v. Schroeder, 269 Mass. 337, 168 N.E. 809. The plaintiffs were not obliged to show that a specific negligent act or omission of Vidal was the cause of the automobile starting. Fone v. Elloian, 297 Mass. 139, 141, 7 N.E.2d 737.

The evidence presented a case for the jury and there was no error in the denial of the defendant Vidal's motion for a directed verdict.

The question whether the defendant Raczka, who was not present when the automobile was parked, could also be found responsible for the collision depends on whether, at the time of its occurrence, he was a partner of Vidal and Vidal was using the automobile in the business of the partnership. There was evidence that the two defendants 'organized a partnership business on January 1, 1947, under name, Used Car Sales,' to buy and sell used automobiles. They obtained a license from the municipal authorities and three sets of dealers' number plates from the registry of motor vehicles. They 'continued to operate under the same registration and under the same license to sell second hand cars until the end of 1947,' at which time 'the partnership terminated.' They maintained a 'three car garage' in North Adams and shared the expenses of 'rent, lights and telephone.' The dealers' plates of the partnership were attached to all automobiles purchased by them. Testimony was introduced by the defendants that after June, 1947, because of the illness of Vidal each partner bought and sold automobiles on his own account taking for himself whatever profit he made and that, of the eight automobiles purchased during the partnership, they shared profits on only one. Vidal testified that he bought the Dodge sedan to sell for his own profit but 'it was bought under that license, partnership license, and for a few hours I would say it was owned as partnership property--Used Car Sales.' One Lampiasi, a dealer from whom Vidal purchased the automobile, testified that it was sold to Used Car Sales. Vidal attached one set of the partnership dealers' plates to the automobile and these plates remained on it until the time of the collision.

From this evidence the jury could find that on October 11, 1947, the defendants were partners engaged in the business of dealing in used automobiles and that the automobile in question was owned by the partnership. Even if they gave full credit to the testimony that the purchase by Vidal was intended by him to be for his personal profit, they could still find that title to the automobile vested in the partnership. Irrespective of such ownership, Raczka could be found liable to the plaintiffs provided that the automobile was being used by Vidal in carrying out the business of the partnership. Partners are the general agents of each other while transacting the partnership business and one partner is liable for the tort of another committed in the course and within the scope of the business of the firm. Teague v. Martin, 228 Mass. 458, 461, 117 N.E. 844; Bunnell v. Vrooman, 250 Mass. 103, [328 Mass. 101] 106, 145 N.E. 58. Although there is little evidence as to the use Vidal was making of the automobile on the night of the accident, it appears that after its purchase, which was at 4:30 P.M., he drove it to the Used Car...