Dennis v. Glynn

• Decision Date: 10 January 1928
• Citation: 159 N.E. 516,262 Mass. 233
• Parties: DENNIS v. GLYNN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

262 Mass. 233

159 N.E. 516

DENNIS

v.GLYNN.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 10, 1928.

Report from Superior Court, Middlesex County; Patrick M. Keating, Judge.

Action by James Dennis, by his next friend, against Dermott Glynn.Verdict for plaintiff.On report from the superior court.Judgment entered for defendant.

1.Parent and child k13(1)-Father permitting minor son to operate automobile is not liable for son's negligence, unless son was engaged in father's business, as agent.

Owner of car is not liable for negligence of his minor son in operating it merely because he gave son permission to drive car, but it must be shown that son acted as father's agent, and, at the time, was engaged in father's business.

2.Master and servant k330(1)-One suing automobile owner for minor son's negligence had burden to prove son acted as agent.

In action for injuries against owner of automobile, based on minor son's negligent driving, burden was on plaintiff to show that son of owner was acting as father's agent.

3.Master and servant k301(1)-Automobile owner held not liable for negligent driving by minor son taking younger brother for ride.

Eighteen year old son of owner of car was not father's agent in driving it merely because he took his four year old brother out for a ride, with father's knowledge or permission, where there was no showing that he invited his brother at his father's request or direction, and father was therefore not liable for injuries to one struck by car due to son's negligent driving.

J. F. Daly, of Boston, for plaintiff.

W. J. Bannan and T. F. Bannan, both of Waltham, for defendant.

CARROLL, J.

The plaintiff was struck and injured by an automobile belonging to the defendant and operated by his son John, who the jury could have found was negligent.There was a verdict for the plaintiff, and the case is in this court on a report of the trial judge.

John Glynn, the defendant's son, eighteen years of age, lived with his father and was licensed to operate automobiles.Shortly before eight o'clock on the night of the accident, he went to the garage which was situated in the rear of the defendant's house and drove away.As he was leaving the yard, he invited his four-year old brother, who way playing there, to accompany him.The defendant was at this time sitting on the back porch.John, called as a witness by the plaintiff, testified that he said nothing to his father about taking the automobile, and ‘his father was not in a position to see him when he drove away’; that his father could see his brother‘if he looked around that way’; that ‘there had been no talk about taking the child out, and he picked him up to take him ‘out for a ride’‘any place I felt going,’ without asking his father's permission or telling him that he was taking the child.'The defendant, who was also called by the plaintiff, testified that he did not see John ‘take the car’ and ‘was unaware that he had done so’; that ‘the four-year old boy was playing around in the yard, and the father was exercising general supervision over him’; that ‘John had his permission to take the car’ but ‘did not have permission to take the four-year old boy out’; that he‘did not notice John going to the garage, and did not see him coming out with the car.He could not tell where the boy was when John took the car out.’

[1][2][3]The defendant was not liable merely because he owned the automobile and permitted his son to operate it.To establish liability there must be evidence that the driver was the defendant's agent and at the time engaged in his business.Trombley v. Stevens-Duryea Co., 206 Mass. 516, 92 N. E. 764;Haskell v. Albiani, 245 Mass. 233, 139 N. E. 516;Kwindias v. Knoel(Mass.)158 N. E. 335, and c...