Bruce v. Hanks

• Citation: 277 Mass. 268,178 N.E. 728
• Parties: BRUCE v. HANKS (two cases). RUSSELL v. SAME.
• Decision Date: 04 December 1931
• Court: United States State Supreme Judicial Court of Massachusetts

277 Mass. 268

178 N.E. 728

BRUCE

v.HANKS (two cases).

RUSSELL

v.SAME.

Supreme Judicial Court of Massachusetts, Worcester.

Dec. 4, 1931.

Exceptions from Superior Court, Worcester County; W. P. Hall, Judge.

Actions by Beatrice L. Bruce, p. p. a., and by Margaret A. Russell, and by Charles Bruce, against George F. Hanks, which were tried together. Verdicts for defendant, and plaintiffs bring exceptions.

Exceptions overruled.M. Michelson, of Boston, and J. B. Hayes, of Fitchburg, for plaintiffs.

S. M. Salny and E. W. Baker, both of Fitchburg, for defendant.

WAIT, J.

These three actions were tried together. The plaintiffs Beatrice L. Bruce and Margaret A. Russell were injured while riding as guests in a motor vehicle by invitation of the driver, one Johnson. The plaintiff Charles Bruce sues as father of Beatrice, a minor, for consequential damages. The defendant was the registered owner of the vehicle at the time of the accident. For the purposes of this proceeding it is agreed that there was evidence for the jury that the driver was guilty of negligence sufficient to justify recovery and that the plaintiffs were in the exercise of due care. The judge directed verdicts for the defendant. The only questions for our consideration are whether certain photographs offered by the plaintiffs properly were excluded; and whether there was evidence of liability of the defendant sufficient to take the case to the jury.

There was no error in the exclusion of the photographs. They were taken on the day of the trial and represented the locus of the accident as it was seen by the jurors at their view. There was no evidence that no changes had taken place since the time of the accident. Ordinarily the admission or exclusion of photographs rests in the discretion of the trial judge. His decision will not be disturbed unless it is plainly wrong, or in disregard of some rule of law. Everson v. Casualty Co. of America, 208 Mass. 214, 219, 94 N. E. 459. Here the photographs simply served as a memorial of what the jurors had seen. No abuse of discretion appears, and there was no prejudice to the plaintiffs.

Section 85A added to G. L. c. 231, by St. 1928, c. 317, § 1, is in these words: ‘In all actions to recover damages for injuries to the person or to property or for the death of a person, arising out of an accident or collision in which a motor vehicle was involved, evidence that at the time of such accident or collision it was registered in the name of the defendant as owner shall be prima facie evidence that it was then being operated by and under the control of a person for whose conduct the defendant was legally responsible, and absence of such responsibility shall be an affirmative defence to be set up in the answer and proved by the defendant.’

The defendant testified that he had forbidden the dirver, who was in his general employ, to pick up any passenger. There was no other testimony with reference to the authority of the driver to invite persons to ride with him. It is settled law that a master is not responsible for the acts of a servant who is acting without authority from him. Hobbs v. Cunningham, 273 Mass. 529, 174 N. E. 181;Ciarmataro v. Adams (Mass.) 176 N. E. 610. See, also, Simmons v. Rabinowitz, 266 Mass. 109, 164 N. E. 806;Du Bois v. Powdrell, 271 Mass. 394, 171 N. E. 474. It was indispensable for recovery here against the defendant to find that the driver was acting by the defendant's authority. In the absence of all other evidence to establish this fact, the plaintiffs rely on the statute; and contend that, by virtue thereof, prima facie evidence of full authority in the driver to bind the defendant was created by evidence that when the accident occurred the motor vehicle was registered in the name of the defendant as owner. The answers do not set up absence of authority as an affirmative defence.

[6] If the contention is sound there was error in directing verdicts for the defendant in the case of Beatrice L. Bruce and Margaret Russell; but not in the case of Charles Brouce. We have recently decided that the statute has no application when the claim is for consequential damages, that the words ‘damages * * * to property’ do not include such damage as is here sought by him. Wilson v. Grace, 273 Mass. 146, 173 N. E. 524;Karpowicz v. Manasas (Mass.) 176 N. E. 497. These decisions are controlling. We have stated in Smith v. Freedman, 268 Mass. 38, 40, 167 N. E. 335, that the statute does not purport to change the substantive law of negligence. To the same effect are Thomes v. Meyer Store, Inc., 268 Mass. 587, 588, 168 N. E. 178,Ferreira v. Franco, 273 Mass. 272, 173 N. E. 529, and Wilson v. Grace, 273 Mass. 146, 173 N. E. 524. The language of McNeil, v. Powers, 266 Mass. 446, 447, 165 N. E. 385, in which the statute is spoken of as extending further the liability of an owner of a motor vehicle, refers to change in the method of proof of liability, not to a change in substantive law imposing an added liability. The words were used in an action where all that was necessary for proof of liability was the agency of the driver, and not where, in addition to the fact of agency, proof of authority in the agent to invite a passenger was needed to establish liability. See, also, Nash v. Lang, 268 Mass. 407, 410, 167 N. E. 762. The statute creates a rule of evidence. It changes the law as it had existed before it took effect. Up to...