Donnelly v. Harris

• Decision Date: 31 December 1914
• Citation: 219 Mass. 466,107 N.E. 435
• Parties: DONNELLY v. HARRIS; OUIMETTE v. HARRIS (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

219 Mass. 466

107 N.E. 435

DONNELLY

v.HARRIS;

OUIMETTE

v.HARRIS (two cases).

Supreme Judicial Court of Massachusetts, Hampden.

Dec. 31, 1914.

Exceptions from Superior Court, Hampden County.

Actions by Elizabeth Donnelly, Joseph Ouimette, and George Ouimette, against Edward H. Harris. There were judgments for plaintiffs, and defendant excepted. Exceptions overruled.

The defendant, who asserted that his servant had taken the motor car which collided with plaintiff's carriage, offered evidence to show that on the morning of the day of the accident the servant visited an inn and invited a bartender and another to go riding with him.

Daniel E. Leary, Geo. D. Cummings, and Geo. F. Leary, all of Springfield, for plaintiffs.

J. R. Carroll, W. H. McClintock, and J. F. Jennings, all of Springfield, for defendant.

DE COURCY, J.

At some time during the evening of July 23d, in the town of Longmeadow, a collision occurred between an automobile owned by the defendant and a carriage owned by the plaintiff Joseph Ouimette, in which the plaintiffs George Ouimette and Elizabeth Donnelly were traveling. There was evidence that the plaintiffs who were in the carriage were in the exercise of due care, and that the driver of the automobile was negligent in the running of it at the time of the accident.

The plaintiffs introduced evidence that the defendant himself was in the automobile at the time, and Harris submitted testimony to the contrary. On the issue thereby raised there is no question of law before us. The evidence offered by the defendant also tended to show that the automobile was being driven by one Pease, who was in his employ, but that Pease was not acting within the scope of his employment at the time of the accident. The defendant requested certain rulings on this issue and the refusal to give the second and third raises the main question before us. That is, in substance, was there evidence to warrant a finding that the driver of the car was acting within the scope of his employment?

[1] If the verdict for the plaintiffs was based on this issue, they must have rejected much of the testimony of the defendant and of Pease, the two persons whose relation to each other was involved. The remaining testimony on the question was meager, and perhaps necessarily so. It consisted chiefly of statements alleged to have been made by the defendant himself on the morning after the accident, and near the scene thereof, to the effect that Pease was one of his best men, that Pease and himself did all of the demonstrating for the defendant, and that Pease had told him on the day of the accident that he ‘wanted to take the car out to demonstrate it to somebody,’ ‘to show it to a party,’ and he, the defendant, ‘let him take it.’ In addition to this, however, the jury...