Ducey v. Brunell

• Decision Date: 18 October 1924
• Citation: 145 N.E. 37,250 Mass. 114
• Parties: DUCEY v. BRUNELL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

250 Mass. 114

145 N.E. 37

DUCEY

v.BRUNELL et al.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 18, 1924.

Exceptions from Superior Court, Worcester County; R. W. Irwin, Judge.

Action of tort by Frank Ducey against George J. Brunell and others, to recover personal injuries sustained by plaintiff, while traveler on public highway, through being struck by automobile ambulance. Court ruled for plaintiff, and defendant brings exceptions. Exceptions sustained.

R. B. Dodge and A. T. Saunders, both of Worcester, for plaintiff.

J. A. Love and F. H. Berger, both of Webster, for defendants.

RUGG, C. J.

This is an action to recover compensation for personal injuries sustained by the plaintiff while a traveler on a public way through being struck by an automobile ambulance owned by the town of Webster and driven by William G. Haggerty. The plaintiff brought an action against the town, on this same cause of faction, in which it was decided that there could be no recovery because the operation of the ambulance was ultra vires the town. Ducey v. Webster, 237 Mass. 497, 130 N. E. 53.

The case is now submitted upon agreed facts in substance as follows: The present defendants were the selectmen of the town of Webster in 1917 at the time when the plaintiff sustained his injuries. They had no interest in the ambulance except as officers of the town acting pursuant to certain votes. The ambulance was purchased in accordance with a vote of the town passed in 1911 from which it appears that a part of its price was contributed from private sources, the rest having been paid by the town. Votes were passed by the town appropriating money for the maintenance of the ambulance, declaring that its use should be free to inhabitants of the town, and upon charge to inhabitants of an adjacent town. It was under the control of the board of health of the town prior to 1917. In that year, before the injury to the plaintiff, it was by vote of that board turned over to the board of selectmen. The latter board passed votes to receive the ambulance, to house it in a specified garage, and to appoint a first driver and an assistant driver, the latter being Haggerty, who was operating it at the time the plaintiff was injured. Votes were passed by the selectmen as to free use of the ambulance by citizens of the town, as to charges for its use to neighboring towns and as to pay of the drivers of the ambulance. It also was voted that all ambulance calls be made direct to the drivers and that all out of town calls be made by a responsible person. At the time of the injury to the plaintiff, the ambulance was returning from a trip for the transfer of a patient to a hospital in the city of Worcester. Haggerty was paid by the town of Webster.

It was conceded that the plaintiff was in the exercise of due care and that his injuries were caused by the negligence of the driver of the ambulance. The amount has been agreed, for which judgment is to be entered if the plaintiff is entitled to recover. The only question for decision is whether the defendants are liable for the negligence of the driver of the ambulance on the occasion in question.

[1] The defendants as selectmen do not appear to have given any specific directions as to the use of the ambulance or as to its operation. They did nothing by way of personal misfeasance contributing to the injury of the plaintiff. They did not buy the ambulance. They found it as a thing of value, title to which was in the town. Even before the definite mandate of St. 1920, c. 591, § 11, now G. L. c. 40, § 3, to the effect that all real and personal property of the town shall be under the control of selectmen in the absence of other provision by law or vote, the selectmen were required under their general duty to care for property of the town not in the custody of other town officers by law, vote or custom. It therefore was their duty to take care of the ambulance when the board of health declined to have anything further to do with it. There is nothing in this record to warrant an inference that the defendants intended to act with respect to the ambulance in any private capacity or in any other relation than as selectmen. There in nothing to indicate that in truth they had any purpose other than to serve the public interest, or that they had any personal motive. They had no evil intent against the plaintiff. The driver of the ambulance at the time of the plaintiff's injury was not being paid by the defendants. He was not acting under their personal direction. He was driving the ambulance in his own way and according to his own conceptions of his obligations. No one of the defendants...