Farnham v. Clifford

• Court: Maine Supreme Court
• Writing for the Court: HALEY, J.
• Citation: Farnham v. Clifford, 116 Me. 299, 101 A. 468 (Me. 1917)
• Decision Date: 28 July 1917
• Parties: FARNHAM v. CLIFFORD.

101 A. 468

116 Me. 299

FARNHAM

v. CLIFFORD.

Supreme Judicial Court of Maine.

July 28, 1917.

Exceptions from Supreme Judicial Court, Androscoggin County, at Law.

Action by Anna R. Farnham against John D. Clifford. There was a verdict for plaintiff, and the case is before this court on a motion for a new trial and upon exceptions. Motion and exceptions overruled.

Argued before SAVAGE, C. J., and CORNISH, KING, BIRD, HALEY, and MADIGAN, JJ.

McGillicuddy & Morey, of Lewiston, for plaintiff. Andrews & Nelson, of Augusta, for defendant.

HALEY, J. An action on the case for personal injuries alleged to have been sustained by the plaintiff June 13, 1914, as a result of a collision of the carriage in which she was riding with the automobile of the defendant. The case was tried at the September term, 1916, in Androscoggin county, and the jury returned a verdict for the plaintiff for the sum of $3,747.69, and the case is before this court upon a motion for a new trial and upon exceptions.

At the time of the accident the defendant was living in the city of Lewiston. The family consisted of himself and wife, two boys and two girls, the sons being more than 21 years of age and practicing lawyers in the city of Lewiston. The defendant was the owner of an automobile, which he had purchased for the pleasure of himself and family and which the family had permission to take and use whenever they so desired. On the evening of the accident the defendant was not in town, and on that evening one of his sons, who was living with him as a member of his family, took the car, without any express permission as far as positive testimony goes, and while operating the automobile did it so negligently that it collided with a team in which the plaintiff was riding, about three miles out of Lewiston on the road to New Gloucester. As a result of that collision, the plaintiff was injured, and brings this action against the defendant.

It is the contention of the attorney for the defense that there is no evidence whatever that John D. Clifford, Jr., the son who was driving the automobile at the time of the accident, had ever acted as chauffeur for his father, or had ever driven for any other member of his father's family, and that there is an entire lack of evidence as to whether he was out on business or pleasure the night of the accident. The motion and exceptions practically go to the same proposition, that there is no evidence in the case that the son was employed in his father's business while driving the machine at the time of the accident; that it was for his sole pleasure; that the relation of master and servant did not exist; that such relation cannot be inferred from the ownership of the car; and that, although it may have been the business of the father to furnish an automobile for the use of his family, yet there is no evidence in the case that the son was so using it, or for what purpose he was using it; that it does not appear sufficiently that he was performing the business of his father*' or that the relation of master and servant existed. The defendant testified that the son did not own the auto, and never did; that he himself was in absolute control of the machine; that nobody else had the control; that its control never passed from him; that he bought the machine for the pleasure of himself and family; that John D., Jr., the son, had the right to take the machine out on any pleasure ride that he might wish; that he did not have to ask permission; that he bought it for the family's pleasure to...