Gould v. Elder

• Court: Supreme Judicial Court of Massachusetts
• Citation: Gould v. Elder, 219 Mass. 396, 107 N. E. 59 (Mass. 1914)
• Decision Date: 01 December 1914
• Parties: GOULD v. ELDER et al.

219 Mass. 396

107 N.E. 59

GOULD v. ELDER et al.

Supreme Judicial Court of Massachusetts, Essex.

December 1, 1914

SYLLABUS

Defendant's requested charge No. 12 was as follows:

If the jury finds upon all the evidence that the operator in charge of the automobile was not engaged in any business of or for the defendant at the time of the accident, then the question as to whether the automobile in question was properly registered is not material.

COUNSEL

P. B. Kiernan, of Boston, for plaintiff.

Curtis G. Metzler and Geo. A. Kearsley, both of Boston, for defendant Edward M. Elder.

OPINION

CROSBY J.

The plaintiff, a boy nine years old, while a traveler upon a public way, was struck by an automobile and injured. The automobile was operated by one Herbert W. Elder, a brother of the defendant Edward M. Elder, and a son of Edward E. Elder the other defendant. The action has been discontinued against Edward M. Elder, and the case was submitted to the jury solely against Edward E. Elder.

The only question presented is whether upon the evidence the jury were warranted in finding the defendant Edward E. Elder chargeable with the negligence of his son, Herbert. This question is raised by the defendant's first and twelfth requests for rulings.

The automobile which struck the plaintiff was owned by Edward E Elder, but was registered in the name of Edward M. Elder under a dealer's license. St. 1909, c. 534, § 4. The statute provides that:

"Dealer' shall include every person who is engaged in the business of buying, selling or exchanging motor vehicles, on commission or otherwise, and every person who lets for hire two or more motor vehicles.'

On the date of the accident, which occurred on August 22, 1911, Edward M. Elder conducted a garage, but whether the business there carried on was his own or whether he was acting as the agent and employé of his father was in dispute at the trial. We are of opinion that upon the evidence and the reasonable inferences to be drawn therefrom, the jury would have been warranted in finding, as contended by the plaintiff, that Edward M. Elder was in his father's employ and that the latter was the real owner of the business and was conducting the same by his agent and employé. Upon such a finding it would follow that the automobile was not legally registered, and that it should have been registered in the name of the defendant Edward E. Elder.

A finding that this machine was not lawfully registered made its operation upon the highway illegal. St. 1909, c. 534, § 9. The operation of an unregistered machine is made a criminal offense. St. 1909, c. 534, § 18. If this automobile was found by the jury not to be properly registered, the defendant could not legally operate it upon the highway; nor could he lawfully authorize or permit any other person so to operate it.

If the jury found that this car was not duly registered and that the defendant permitted his son, Herbert, to operate it upon the highway, the defendant is liable for the consequences of any negligence of Herbert; and this is true whether Herbert at the time was acting within the scope of his employment or was using the car in connection with his...