Fitiles v. Umlah

• Decision Date: 30 January 1948
• Citation: 77 N.E.2d 212,322 Mass. 325
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: ANNA S. FITILES & others v. WILLIAM A. UMLAH & another(and a companion case [1]).

322 Mass. 325

77 N.E.2d 212

ANNA S. FITILES & others v. WILLIAM A. UMLAH & another(and a companion case ^[1]).

Supreme Judicial Court of Massachusetts, Middlesex.

January 30, 1948

January 7, 1948.

Present: QUA, C.

J., LUMMUS, DOLAN RONAN, & WILLIAMS, JJ.

Agency, What constitutes. Evidence, Presumptions and burden of proof. Motor Vehicle, Operation.

In an action against the registered owner of a motor vehicle for injuries resulting from a collision in which it was involved while it was being operated by another, a warranted special finding by the jury, that at the time of the collision the operator was not acting within the scope of his employment by the defendant or by permission of the defendant, made G. L. (Ter Ed.) c. 231, Section 85A, inapplicable and made unwarranted a verdict for the plaintiff based on the ground that the operator's conduct bound the defendant.

Liability of the owner of an automobile for injuries resulting from a collision in which it was involved while it was being operated by one who the owner knew or should have known was unlicensed could not be predicated on a violation of G. L (Ter. Ed.) c. 90, Section 12, where it appeared that at the time of the collision the operator was using the automobile without permission from the owner, even though the operator was in possession of a key to the garage in which the automobile was kept.

TWO ACTIONS OF TORT. Writs in the Superior Court dated January 9, 1946, and October 31, 1945, respectively.

The actions were tried before Beaudreau, J. There were verdicts for the plaintiffs, and the defendant Umlah alleged exceptions.

A. E. LoPresti, (P.

J. Donaher with him,) for the defendant Umlah.

S. S. Cross, (S.

Leventall with him,) for the plaintiffs.

LUMMUS, J. On August 16, 1945, the plaintiffs Anna S. Fitiles, William V Logue, Muriel Logue, Dorothy Logue, William V. Logue, Junior, and John Clark were riding in a motor vehicle owned by Elizabeth Eliopoulos, and operated by said Anna S. Fitiles, and were injured in a collision between that motor vehicle and another owned by the defendant William A. Umlah (hereinafter called the defendant) and operated by one Walter F. Kilgallon, Junior. Counts were added by William V. Logue to recover consequential damages for medical service rendered to his wife and minor children, and by Alfred Clark to recover consequential damages for medical service rendered to John Clark, his minor son.

At the trial, it appeared that the defendant's motor vehicle was registered in his name as owner. The defendant was almost blind, and employed Kilgallon to drive his motor vehicle. Kilgallon assured him that he (Kilgallon) was a licensed operator. G. L. (Ter. Ed.) c. 90, Section 12. But he had no license in truth. If Umlah allowed Kilgallon to operate because of ignorance that Kilgallon had no license, he was nevertheless guilty of a violation of that section. Leblanc v. Pierce Motor Co. 307 Mass. 535, 538. But the evidence showed that while the key to the garage, in which the motor vehicle was kept, was given to Kilgallon, he was, on August 15, 1945, instructed by Umlah not to use the motor vehicle until he resumed work for Umlah on August 17, 1945. In violation of those instructions, Kilgallon took the motor vehicle on the evening of August 16, 1945, and drove it upon his own personal business, and while he was so using it the collision happened through his negligence.

In response to questions submitted to the jury, the jury found that at the time of the collision Kilgallon was not acting within the scope of his employment by Umlah, that Umlah knew or should have known at the time he employed Kilgallon that...