Butler v. Mechanics' Iron Foundry Co.

• Decision Date: 20 May 1927
• Citation: 156 N.E. 720,259 Mass. 560
• Parties: BUTLER v. MECHANICS' IRON FOUNDRY CO. FLAGG v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

259 Mass. 560

156 N.E. 720

BUTLER

v.MECHANICS' IRON FOUNDRY CO.

FLAGG

v.SAME.

Supreme Judicial Court of Massachusetts, Essex.

May 20, 1927.

Exceptions from Superior Court, Essex County; Wilford D. Gray, Judge.

Separate actions of tort by Gertrude T. Butler and by Marshall F. Flagg against the Mechanics' Iron Foundry Company to recover for injuries in collision of plaintiff's automobile with defendant's truck. Verdicts for plaintiff in each case, and defendant excepts. Exceptions sustained. Judgment for the defendant in each case.

1. Master and servant k301(2)-Owner held not responsible for negligence of intruder, permitted by chauffeur to drive truck contrary to owner's orders.

Where it was not within scope of truck driver's authority to permit any one to ride on or operate the truck, owner thereof was not responsible for negligence of an intruder, permitted by chauffeur to ride and drive truck, and whose negligence in driving on left of street caused collision with plaintiff's automobile.

2. Master and servant k301(2)-Owner held not liable for negligence of intruder, permitted to drive truck contrary to instructions, because chauffeur was on driver's seat.

Where it was not within scope of truck driver's authority to permit a third person to ride on or to operate the truck, and where driver permitted an intruder to ride on and operate the truck, owners were not liable for the intruder's negligence in driving on left of street and colliding with plaintiff's automobile, because truck driver was on the driver's seat, where no negligence of the driver contributed to the injury.

3. Master and servant k301(2)-Truck owners were not responsible for negligence of person permitted to drive because they intrusted truck to employee as driver.

Where truck driver contrary to orders permitted a third person to ride on and to drive the truck, and whose negligence in driving on left of street caused collision between truck and plaintiff's automobile, truck owners were not responsible for his negligence because they had intrusted the truck to their employee as driver thereof.

Fred H. Eaton and Frederic N. Chandler, both of Lawrence, for plaintiffs.

James T. Connolly, of Boston, for defendant.

CARROLL, J.

There was evidence that the plaintiff Flagg, who was driving the automobile of the plaintiff Butler, was using proper case; that he was injured and the automobile damaged by a collision with the defendant's truck, caused by the negligence of one Doyle who at the time was operating it.

Michael Welch was employed by the defendant as a chauffeur to drive the truck. He was instructed, according to the testimony of the defendant's superintendent, ‘to have nobody ride on the trucks.’ It was agreed that Welch would testify, if present, that he was employed to drive the truck and was instructed to allow no one to ride with him; that he met Charles Doyle, a licensed chauffeur, who asked for a ride; that Doyle asked to drive; that about ‘two miles before the accident’ Welch allowed him to drive; that Doyle pulled over to the left and was unable to return to the right side of the way because ‘of cars on his right’; that he expected Doyle would stop, but ‘the truck did not stop and both cars came together on the left side of the street’; and that the truck was practically new and in perfect condition. It was also agreed that Doyle would testify that he had never been employed by the defendant; that he was allowed by Welch to drive the truck; that seeing the Butler car approaching him, he became excited and pulled his gas control to ‘shut off the gas,’ but ‘owing to his inexperience with the truck, he pulled it on instead of shutting it off, and neglected to apply his brakes.’

[1] It was not within the scope of Welch's authority to permit Doyle to ride upon the truck or to operate it. The defendant, who had no knowledge of these acts of Welch, and neither expressly nor impliedly authorized them, would not be liable if Doyle were injured by the negligence of Welch (see O'Leary v. Fash, 245 Mass. 123, 140 N. E. 282, and cases cited), and to hold the defendant responsible to the plaintiffs for the negligence of Doyle would impose on the master a liability to respond in damages for the unlawful conduct of an intruder, whom he never engaged as a servant or authorized to act for him, whose acts he was not expected to anticipate and of which he was ignorant. The relation of master and servant cannot be imposed upon a person without his consent expressed or implied. The defendant was free to select his own servants. He was responsible for their acts within the real or apparent scope of their employment; but he was not responsible for the acts of a volunteer or of an assistant permitted without his...