Foley v. McDonald
| Decision Date | 23 May 1933 |
| Citation | 283 Mass. 96,185 N.E. 926 |
| Parties | FOLEY v. McDONALD et al. MADDEN v. SAME. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court of Marlborough; W. Temple, Special Justice.
Actions by Mary Foley and by Helen Madden against Charles A. McDonald and others. There was a finding for plaintiff in each case, a report to the Appellate Division which dismissed the report, and defendants appeal.
Order dismissing report affirmed.
R. J. Dunn, G. W. Roberts and J. F. Lawton, all of Boston, for appellants.
J. P. Driscoll, of Framingham, for appellee.
The plaintiffs, riding in an automobile owned by the defendants and operated by their agent, were injured when the automobile struck a tree. Each plaintiff brought an action of tort in the district court to recover compensation for her injuries. In each case certain requests by the defendants for rulings were refused, there was a finding for the plaintiff, a report to the Appellate Division, which dismissed the report, and an appeal by the defendants to this court.
The trial judge found that the plaintiffs were in the exercise of due care, that the automobile was being operated by and under the control of a person for whose conduct the defendants were legally responsible, and that the operator was negligent, but that he was not guilty of gross negligence. The defendants' sole contention is, in substance, that findings for the plaintiffs were not justified since, in the aspect of the evidence most favorable to them, they were merely guests in the automobile, being transported gratuitously, and consequently could recover only upon proof of gross negligence. See Jacobson v. Stone, 277 Mass. 323, 324, 178 N. E. 636.
The defendants' requests for rulings in accordance with their contention were refused rightly.
There was evidence that the defendants were engaged in the business of selling automobiles, that the plaintiffs planned to buy an automobile together, that they went to the defendants' salesroom where they discussed automobiles, such as the defendants sold, with a man employed by the defendants as demonstrator and salesman, and that when the accident occurred this employee of the defendants was transporting the plaintiffs, at his invitation, to their homes in an automobile which he was demonstrating to them for the purpose of making a sale of that or a similar automobile. It could have been found that this employee was acting within the scope of his employment by the defendants. Hoffman v. Liberty Motors, Inc., 234 Mass. 437, 125 N. E. 845;Cardoza v. Isherwood, 258 Mass. 165, 154 N. E. 859. There was no evidence that either of the plaintiffs thereafter bought an automobile of the defendants or had any further business relations with them.
The evidence, therefore, warranted findings that the plaintiffs, when injured, were riding in the defendants'...
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