Dickinson v. Great American Indem. Co.
| Decision Date | 25 January 1937 |
| Citation | 6 N.E.2d 439,296 Mass. 368 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | HELEN PRENTISS DICKINSON v. GREAT AMERICAN INDEMNITY COMPANY & others. |
November 8, 1935.
Present: RUGG, C.
J., CROSBY, PIERCE DONAHUE, & QUA, JJ.
Insurance, Motor vehicle liability. Motor Vehicle, Operation. Evidence Competency.
A finding that an employee of the owner of a motor truck, while operating it upon a public way solely for his own purposes, was not a "person responsible for the operation of the insured's motor vehicle with his . . . implied consent" within the meaning of a policy of compulsory motor vehicle liabiltity insurance covering the truck, was warranted by evidence that the employee's authority to drive the truck upon the public highway always had been limited to a particular duty or expressly granted for a special occasion, although he was the the regular operator of the truck on the owner's grounds and there was no physical impediment to his taking the truck at any time during the day.
An exception to the admission of testimony by a manager of a school that an employee under him did not have authority to do a certian act was overruled, the evidence being competent on an issue of express authority of the employee which still was being tried went the evidence was admitted, although that issue afterwards was abandoned.
BILL IN EQUITY filed in the Superior Court on August 28, 1934. The suit was heard by Sisk, J., by whose order a final decree was entered dismissing the bill. The plaintiff appealed.
A. Brayton, for the plaintiff.
S. Abrams, (N.
F. Fermoyle with him,) for the defendants.
The plaintiff was injured on the afternoon of January 29, 1934 when an automobile in which she was riding on a public highway was hit by an automobile truck, owned by and registered in the name of the Belmont Hill School, and negligently operated at the time by one Plant who was in the employ of the school. The plaintiff recovered a judgment against Plant in an action for damages for personal injuries resulting from the collision.
The automobile truck was insured pursuant to the compulsory motor vehicle liability insurance law (G.L. [Ter. Ed.] c. 90, Sections 34A-34J). This bill in equity was brought to reach and apply, in payment of the plaintiff's judgment against Plant, the obligation of the insurance company under the policy issued to the school. G.L. (Ter. Ed.) c. 214, Section 3 (10). The insurance company, the school and Plant are named as defendants.
The case was tried before a judge of the Superior Court. All the facts necessary to entitle the plaintiff to recover were agreed upon except the facts concerning the issue whether Plant was, at the time of the accident, within the meaning of the language of the policy, "responsible for the operation of the insured's motor vehicle with his [the insured's] express or implied consent." G.L. (Ter. Ed.) c. 90, Section 34A. The trial judge made findings of fact including the finding that there was "no evidence that Plant had express consent or instructions from any person in authority to take or use the truck at the time and place of the accident." He also found and ruled that "Plant had no implied permission or consent from any person in authority to take and use the truck on the day of the accident outside of the school grounds." He ordered the entry of a final decree dismissing the bill. All the evidence is reported.
The plaintiff does not now contend that Plant was responsible for the operation of the automobile truck at the time of the accident with the express consent of the insured. Her contention is that the trial judge was wrong in his finding and ruling that Plant on the day of the accident did not have implied permission or consent from any person in authority at the school to take and use the truck outside the school grounds.
At the time of the collision Plant was driving the truck from the school at Belmont to a neighboring town. His purpose was the purchase of a pair of gloves for himself. A fellow employee, who was also on the truck for no reason disclosed by the evidence, was under the influence of intoxicating liquor and Plant had been drinking for several hours before he left the school grounds. There was no evidence that anyone connected with the school knew of his condition or saw him leave with the truck.
Plant had been employed at the school for nearly four years prior to the accident. He was hired to do general outside work on the buildings and grounds and to drive the truck. Included in his duties was the collection of ashes at the buildings of the school and their transportation in the truck to a dump located on the school grounds. This he did about three times a week during the winter. In performing this work he was obliged to drive...
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