Hargreaves v. Keogh Storage Co.

• Decision Date: 25 November 1924
• Citation: 250 Mass. 339,145 N.E. 456
• Parties: HARGREAVES et al. v. KEOGH STORAGE CO. EASTERN MASSACHUSETTS STREET RY. CO. v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

250 Mass. 339

145 N.E. 456

HARGREAVES et al.

v.KEOGH STORAGE CO.

EASTERN MASSACHUSETTS STREET RY. CO.

v.SAME.

Supreme Judicial Court of Massachusetts, Bristol.

Nov. 25, 1924.

Exceptions from Superior Court, Bristol County; J. H. Sisk, Judge.

Separate actions of tort by Thomas Hargreaves and others and by the Eastern Massachusetts Street Railway Company against the Keogh Storage Company, to recover for destruction by fire of certain property of plaintiffs. Verdict for defendant. Plaintiffs bring exceptions. Exceptions overruled.

A. E. Seagrave, of Fall River (J. Seligman, of Fall River, on the brief), for plaintiffs.

C. P. Ryan, of Fall River, for defendant.

RUGG, C. J.

The plaintiffs in these actions of tort seek to recover compensation for the destruction by fire of their property alleged to have been caused by the negligence of a servant of the defendant. There was evidence tending to show that a servant of the defendant, while driving its truck conveying some inflammable goods along a highway, found that the load was on fire. The truck was stopped, efforts to extinguish the fire were unsuccessful, and its spread destroyed property of the plaintiffs on land nearby.

[1] The plaintiffs offered to show that, when the driver was asked to permit the cutting of ropes binding the load and to move the truck, he refused, saying in substance that the load was insured. This offer of proof was excluded rightly. There appears to have been no dispute that the truck was in charge of a servant of the defendant. Manifestly the defendant was responsible for the negligence of the driver committed within the scope of his employment. The testimony concerning what the driver did does not seem to have been in much conflict. His acts were definite, observed by several witnesses and fully described in testimony.

[2] His accompanying declaration in response to questions was not admissible as a part of the res gestae because his conduct was not equivocal, and did not require explanation or illustration. Nutting v. Page. 4 Gray, 581, 584;Conklin v. Consolidated Railway, 196 Mass. 302, 82 N. E. 23,13 Ann. Cas. 857.

[3] The driver of a truck has no authority by virtue of his employment to make admissions as to insurance binding upon his employer. Douglas v. Holyoke Machine Co., 233 Mass. 573, 575, 124 N. E. 478;McNicholas v. New England Telephone & Telegraph Co., 196 Mass. 138, and cases collected at page 143, 81 N. E. 889.

The evidence offered had no probative...