Broitman v. Silver

• Citation: 270 Mass. 24,169 N.E. 501
• Parties: BROITMAN v. SILVER.
• Decision Date: 07 January 1930
• Court: United States State Supreme Judicial Court of Massachusetts

270 Mass. 24

169 N.E. 501

BROITMAN

v.SILVER.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 7, 1930.

Exceptions from Superior Court, Suffolk County; John D. McLaughlin, Judge.

Action by Morris Broitman against Tillie Silver. Verdict for plaintiff, and defendant brings exceptions. Exceptions sustained. Judgment to be entered for the defendant.

1. Automobiles k245(30)-Whether truck driver, permitting plaintiff sustaining injuries to ride, was acting within scope of employment, held not for jury under evidence shown.

In action for injuries sustained by plaintiff while riding on truck owned by defendant and used in carrying on business of bakery, evidence that truck driver, in permitting plaintiff to ride, was acting within real or apparent scope of his authority, held insufficient to require submission of question to jury.

2. Automobiles k245(30)-Whether son employed in defendant's bakery had authority to permit plaintiff to ride on truck held not for jury under evidence shown.

In action for injuries sustained by plaintiff while riding on truck owned by defendant and used by her in carrying on bakery business, evidence that defendant's son employed in defendant's bakery was general manager, or was vested with any authority to permit plaintiff to ride upon truck, held insufficient to require submission of question to jury.

A. J. Zimmerman and S. Zimmerman, both of Boston, for plaintiff.

J. T. Pugh, of Boston, for defendant.

CARROLL, J.

The plaintiff was injured while riding on a motor truck owned by the defendant and operated by her servant Weiss. The defendant carried on a bakery in Boston where she had ‘two bake shops.’ Her sons Oscar and Herbert as well as Weiss were employed by her. The plaintiff testified that he was standing on the sidewalk near the defendant's store about two o'clock in the morning when Weiss, the driver of the truck said to him, ‘Come along with me and give me a lift,’ to which the plaintiff answered, ‘No, I have to go into work at six o'clock in the morning’; that Oscar Silver said to the plaintiff, ‘Go ahead. He will be back before six,’ and directed Weiss to ‘Make it as snappy as you can’; that Oscar was present when Weiss asked the plaintiff ‘to give him a lift.’ Mrs. Silver, the defendnat, was not present when this talk took place.

The first count of the declaration alleges that the plaintiff was injured ‘through the carelessness and gross negligence of’ the defendant's servant. The second count states that the plaintiff was ‘riding as a passenger for consideration’ in the defendant's automobile. There was evidence of the plaintiff's care and of the negligence of the driver of the truck. The plaintiff had a verdict. The case is before us on the defendant's exceptions to the refusal to direct a verdict in her favor.

The record presents the question, Did Weiss, the driver of the truck, or Oscar Silver have authority to employ the plaintiff or invite him to ride on the truck as a guest or as a servant of the defendant?

[1] There was no evidence that Weiss was authorized to invitethe plaintiff to be upon the truck or to employ him in the defendant's service. Weiss was hired to drive the truck and to deliver merchandise; he had no further authority. In permitting the plaintiff to ride, Weiss was not acting within the real or apparent scope of his employment. Mrs. Silver did not expressly or impliedly assent to assume any duty toward the plaintiff. She did not ratify the acts of Weiss, and no emergency existed requiring additional assistance. O'Leary v. Fash, 245 Mass. 123, 127, 140 N. E. 282;Stone v. Commonwealth Coal Co., 259 Mass. 360, 156 N. E. 737;Butler v. Mechanics' Iron Foundry Co., 259 Mass. 560, 563, 156 N. E. 720, 54 A. L. R. 849;Murphy v. Barry (Mass.) 163 N. E. 159.

[2] Oscar Silver had no express authority to invite or permit the plaintiff to go on the truck or to accompany Weiss as a guest or servant of the defendant. The evidence shows that Oscar was employed by his mother as a ‘checker’ or ‘shipper.’ He carried the keys of ‘this store, and on the morning of the accident he opened the store for the driver’; after the driver departed he closed the store. It did not appear that he had any...