Gordon v. Bedard

• Decision Date: 02 January 1929
• Parties: GORDON v. BEDARD (three cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

265 Mass. 408

164 N.E. 374

GORDON

v.BEDARD (three cases).

Supreme Judicial Court of Massachusetts, Essex.

Jan. 2, 1929.

Exceptions from Superior Court, Essex County; L. S. Cox, Judge.

Actions of tort by Mary E. Gordon, by Albert B. Gordon, p. p. a., and by Benaiah B. Gordon, against Joseph Bedard. From the refusal to direct the verdict on a certain count, defendant brings exceptions. Exceptions overruled.Cregg & Cregg, of Lawrence, for plaintiffs.

A. E. Bent and W. I. Badger, both of Boston, for defendant.

SANDERSON, J.

These are actions of tort to recover for personal injuries and property damage arising out of a collision of motor vehicles, one a truck owned by the defendant and operated by his son; the other an automobile operated by the plaintiff Benaiah B. Gordon, who was accompanied by his wife, Mary E. Gordon, and son, Albert B. Gordon, the plaintiffs respectively in the other two actions. The declarations as amended contained counts based upon negligence of the defendant's agent or servant; and a count based upon the violation of G. L. c. 90, § 12, as amended by St. 1923, c. 464, § 5, which in part is in the following terms: ‘No person shall allow a motor vehicle owned by him or under his control to be operated by any person who has no legal right so to do, or in violation of this chapter.’

There was evidence warranting the submission to the jury of the questions of the plaintiff's due care and of the negligence of the operator of the truck. A verdict was directed for the defendant on the counts based upon agency and the only question raised by the exceptions is the liability of the defendant, if any, because of violation of the statute quoted. The count based upon the statute alleged in substance that the defendant permitted his son to operate his truck on a highway, the son having no legal right at the time so to do, and as a result thereof the truck was negligently propelled against an automobile owned and driven by one of the plaintiffs and caused the damage complained of.

The defendant and his son were called as witnesses by the plaintiffs. The defendant testified that he saw his son walking toward the truck standing in the shed and forbade him to take it; that he saw him drive it out of the yard. The son testified that as he was going toward the truck the defendant told him not to use it and called to him to leave it as he was driving it out of the yard, but notwithstanding this order the son took it and drove it away. The defendant knew that the son's license had been taken away some years before for driving under the influence of liquor and that it had never been returned.

[2] The defendant contends that the plaintiffs are bound by the uncontradicted testimony of the defendant and his son to the effect that the defendant forbade his son to operate this motor vehicle. A party putting in answers to interrogatories made by the opposing party is bound by the answers if there is no evidence tending to contradict them. Minihan v. Boston Elevated Railway, 197 Mass. 367, 373, 83 N. E. 871;Washburn v. R. F. Owens Co., 258 Mass. 446, 155 N. E. 432. This rule is apparently based upon the statutory rights of a party in regard to the introduction in evidence of such answers. G. L. c. 231, § 89. But the rule does not apply to the testimony of a party when he is called by his opponent to testify, and when so called the jury may believe as much of his testimony as is in the nature of an admission and disbelieve such portions of it as are favorable to himself. Emerson v. Wark, 185 Mass. 427, 70 N. E. 482;Anderson v. Middlebrook, 202 Mass. 506, 508, 509, 89 N. E. 157;Ramsay v. Le Bow, 220 Mass. 227, 107 N. E. 926;Sullivan v. Ashfield, 227 Mass. 24, 116 N. E. 565;McCarthy v. Simon, 247 Mass. 514, 142 N. E. 806;Priorelli v. Guidi, 251 Mass. 449, 450, 146 N. E. 770;Klayman v. Silberstein, 252 Mass. 275, 147 N. E. 827. If the defendant's orders forbidding his son to take the truck are eliminated from the case as they were by the jury's verdict, the circumstances to which the witnesses testified were sufficient to justify the jury in finding that the defendant allowed the son to take the motor vehicle. An owner may allow his motor vehicle to be operated without expressing his permission in words. Upon the evidence the jury could find that the defendant violated the statute upon which this count was based.

But the question remains whether, upon a finding to that effect, the defendant could be liable in an action of tort for the results of the negligence of the son who, upon the rulings of the court, was not, and upon the evidence could not have been found to be, acting as the defendant's agent at the time. Violation of a criminal stat...