Gardner v. Farnum

• Citation: 119 N.E. 666,230 Mass. 193
• Parties: GARDNER v. FARNUM (two cases).
• Decision Date: 24 May 1918
• Court: United States State Supreme Judicial Court of Massachusetts

230 Mass. 193

119 N.E. 666

GARDNER

v.FARNUM (two cases).

Supreme Judicial Court of Massachusetts, Essex.

May 24, 1918.

Exceptions from Superior Court, Essex County; Loranus E. Hitchcock, Judge.

Actions by Robert K. Gardner, a minor, for personal injuries, and by Fred W. Gardner, his father, for consequential damages, against Henry M. Farnum. Verdicts for plaintiffs, and defendant excepts. Exceptions sustained.

1. MASTER AND SERVANT k302(2)-INJURY TO THIRD PERSON-SCOPE OF EMPLOYMENT-CHAUFFEUR-OWNERSHIP OF AUTOMOBILE.

The fact that defendant owned the automobile which struck plaintiff is not enough to show that the chauffeur was acting within the scope of his employment at the time of the accident.

2. MASTER AND SERVANT k330(3)-INJURY TO THIRD PERSON-MASTER'S BUSINESS-EVIDENCE.

Evidence that defendant owned the automobile while struck plaintiff, and that the chauffeur was in his general employ, was not sufficient to show that the chauffeur was engaged in his master's business at the time of the accident.

3. MASTER AND SERVANT k330(3)-INJURY TO THIRD PERSON-USE OF AUTOMOBILE-SUFFICIENCY OF EVIDENCE.

In an action against an automobile owner by father and son for injuries to the son, evidence held not to disclose that the use of the automobile by defendant's chauffeur was an incident of his employment.

4. MASTER AND SERVANT k330(3)-ENGAGEMENT IN EMPLOYER'S BUSINESS-SUFFICIENCY OF EVIDENCE.

In an action by father and son against an automobile owner for injuries to the son by the car driven by a chauffeur, evidence held not to support an inference that the chauffeur was engaged at the time of the accident on any business or errand for defendant, his employer.

5. MASTER AND SERVANT k302(1)-EMPLOYER'S BUSINESS-CHAUFFEUR-OBTAINING LIQUOR.

If a chauffeur took his employer's car to go to another city to obtain liquor for himself, he cannot be found to have been engaged in his master's business.

Van Courtlandt Lawrence and Howard R. Hodsdon, both of Boston, for plaintiffs.

Sawyer, Hardy, Stone & Morrison, of Boston (Edward C. Stone, of Boston, of counsel), for defendant.

CROSBY, J.

These are two actions of tort-one to recover for personal injuries received by the minor plaintiff, the other to recover for services and expenses incurred by the adult plaintiff-arising out of an automobile accident.

The automobile in question was owned by the defendant and was operated by one Anderson, a chauffeur in the general employ of the defendant. It was admitted that the minor plaintiff was in the exercise of due care and that Anderson was negligent; the only question before us is whether there was any evidence to show that Anderson was acting within the scope of his employment, at the time of the accident.

The defendant, a summer resident of Magnolia in the city of Gloucester, had left there with his family before the accident occurred. At the trial in the superior court he offered no evidence; and the case was submitted to the jury upon the testimony presented by the plaintiffs, at the close of which the presiding judge refused to direct verdicts for the defendant.

The undisputed evidence showed that Anderson and his wife lived at the Mallard House in Magnolia, after his employer's family left at the end of the summer, and that the automobile was taken away at the end of each season; that on the morning of the accident Anderson drove the car to Gloucester and while there drank liquor at different places; that he then ‘went to do an errand’ and returned with a toy sailboat which he put in the back of the machine; that he was under the influence of liquor, and while returning to Magnolia the accident occurred; that later on the same day he took his wife and some other persons to Boston in the automobile.

It appeared that the defendant had two daughters-eight and two years old respectively-that Anderson had no children; and that the toy boat was an elaborate and expensive one. The plaintiff contends that the evidence was sufficient to warrant a finding that in going to Gloucester and purchasing the boat, Anderson was engaged in the performance of an errand for his employer, that he had been sent there to purchase the boat for the defendant's daughter, and he was returning from the performance of that errand when the accident occurred.

[1][2] The fact that the defendant owned the automobile is not enough to show that Anderson was acting within the scope of his employment at the time of the accident. Hartnett v. Gryzmish, 218 Mass. 258, 262, 105 N. E. 988. Nor was the evidence that the defendant owned the automobile and that the chauffeur was in his general employ sufficient to show that he (the chauffeur) was engaged in his master's business. Hartnett v. Gryzmish, supra; Poirier v. Terceiro, 224 Mass. 435, 113 N. E. 204.

[3][4] The evidence fails to disclose that the use of the...