Gondek v. Cudahy Packing Co.
| Decision Date | 22 May 1919 |
| Citation | 123 N.E. 398,233 Mass. 105 |
| Parties | GONDEK v. CUDAHY PACKING CO. (four cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Middlesex County; Loranus E. Hitchcock, Judge.
Actions of tort by John Gondek, Josephine Gondek, Edward Gondek, and Mary Gondek against the Cudahy Packing Company. Verdicts for plaintiffs, and defendant excepts. Exceptions sustained.
The defendant filed the following requests for rulings which were denied by the presiding justice and exceptions duly taken, viz.:
‘(1) On all the evidence the plaintiffs are not entitled to recover.
‘(2) On all the evidence the automobile of the defendant was not being used on the business of the defendant at the time of the accident.
‘(3) On all the evidence the automobile of the defendant was not being used with the permission of the defendant at the time of the accident.
‘(4) The automobile was duly registered according to the laws of the state of New Hampshire, and was not being used in Massachusetts in violation of any laws of the commonwealth of Massachusetts; it was therefore duly registered and not a trespasser upon the highways.
‘(5) If the automobile was being used at the direction and on the business of one Lacaillade, the manager of the defendant, such use was not in the course of the business of the defendant, and the knowledge and permission of Lacaillade was not knowledge and permission of the defendant.
‘(6) The permission of any officer or manager of the defendant to use the defendant's automobile for any use other than that of the defendant's business was ultra vires and was not therefore the act of the defendant.
‘(7) There is no evidence on which the jury would be warranted in finding that the automobile at any time during the trip was being used on the business of the defendant.
‘(8) The defendant was a nonresident within the meaning of the automobile statutes and the automobile was duly registered in the state of the defendant's residence; it was therefore legally operated upon the highways of the commonwealth.
‘(9) There was no evidence that the defendant's automobile had been operated in Massachusetts more than twenty days in the calendar year; the automobile was not therefore in that respect violating the statutes of the commonwealth and was not a trespasser upon the highways.
‘(10) Even if it were found that the trip to Lawrence was on the defendant's business, the subsequent trip to Lakeview Park and return to Lowell was a departure from the defendant's business, and the defendant was not liable for the acts of Larivee and others during that period of departure.
‘(11) Such departure from the defendant's business did not terminate until the automobile had returned to the direct route back to the defendant's place of business.
‘(12) The permission of Lacaillade to use the automobile on anything except the business of the defendant was ultra vires and therefore not binding upon the defendant.
‘(13) The negligence of Larivee, the operator of the automobile, was not the negligence of the defendant, and the plaintiff is not entitled to recover.
‘(14) Larivee, the driver of the automobile, was not the servant or agent of the defendant at the time of the accident, and the plaintiff cannot recover.
‘(15) Lacaillade was not an officer or director of the corporation, and any ultra vires act of his should not bind the corporation.
‘(16) There is no evidence that any officer or director of the corporation assented to or had knowledge of Lacaillade's use of automobile for his own purposes.’
After the judge had delivered his charge, the following colloquy took place at the bench:
The attorney for the defendants objected to the form of the third question, and stated that the defendant claimed that the real question was whether Lacaillade had authority, or whether it was within the scope of his employment, to permit the use of the automobile on his own business, and whether that permission amounted to the consent of the company, and the defendant's counsel stated he thought that, if the manager had authority generally to use the automobile for his own business, it would follow that he would have authority to use it in Massachusetts as well as in Nashua for that purpose, and that he thought that was the real question at issue in the case; that whether or not Lacaillade had authority to permit the commission of an illegal act was not the issue from his point of view.
‘The Court: You would like to have added, ‘Authority to operate the automobile upon business of Mr. Lacaillade’?
‘Mr. Avery: Yes; and then whether it happened on the highways of Massachusetts or not I don't care.’
The court thereupon reframed the third question to be submitted to the jury.
Qua, Howard & Rogers, Albert S. Howard, and Melvin G. Rogers, all of Lowell, for plaintiffs.
H. S. Avery, of Boston, for defendant.
These are four actions of tort, whereby the plaintiffs seek to recover compensation for injuries sustained by them on June 22, 1918, through collision with an automobile owned by the defendant. Confessedly the plaintiffs, at the time travelers on a highway in Dracut in this commonwealth, were in the exercise of due care and the operator of the automobile was negligent. The defendant is a corporation domiciled in Maine, but had maintained in 1918 for more than thirty days before the plaintiffs' injuries several places of business in Massachusetts. It also maintained at Nashua, in the state of New Hampshire, a place of business in connection with which the automobile in question was used. It was registered in New Hampshire, but not in Massachusetts. It was purchased in July, 1917, by the defendant on requisition from one Lacaillade, who for over five years had been manager of the defendant's business at Nashua. It appeared that in 1917 Lacaillade used the automobile five or six times to go from Nashua to Lawrence in this commonwealth, chiefly on business of his own, but there was no evidence on the point whether it was registered in Massachusetts...
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Rummel v. Peters
...by St.1934, c. 361. A resident, as distinguished from a nonresident, must in all cases obtain registration here. Gondek v. Cudahy Packing Co., 233 Mass. 105, 123 N.E. 398;Apger v. New York Cent. R.R., 310 Mass. 495, 497, 38 N.E.2d 652. The first and principal question in these cases is whet......
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Rummel v. Peters
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