Hartnett v. Gryzmish

• Decision Date: 17 June 1914
• Citation: 105 N.E. 988,218 Mass. 258
• Parties: HARTNETT v. GRYZMISH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

218 Mass. 258

105 N.E. 988

HARTNETT v. GRYZMISH.

Supreme Judicial Court of Massachusetts, Suffolk.

June 17, 1914

COUNSEL

Whipple, Sears & Ogden, Wm R. Sears, and Edwd. O. Proctor, all of Boston, for plaintiff.

Edward I. Taylor, of Boston, and J. W. Britton, of Hartford, Conn for defendant.

OPINION

HAMMOND J.

This is an action of tort, brought by the administratrix of the estate of one Hartnett, to recover for his injuries and death caused by a collision between a bicycle ridden by him and an automobile owned by the defendant, upon a public street about half past 1 o'clock in the afternoon of October 13, 1911.

There can be no doubt that upon the evidence the questions of the due care or negligence of Hartnett and the chauffeur were for the jury. The only remaining question is whether at the time of the accident the latter was the defendant's servant acting within the scope of his employment; and the burden of showing that he was rested upon the plaintiff.

Upon this question it appeared, or there was evidence tending to show, that the automobile was owned by the defendant and was registered in his name, and that Kravatz, the chauffeur, was in his employ as such at the time of the accident. Kravatz testified that at that time he was not in the employ of the defendant, but of his (the defendant's) mother; that she hired him and paid him; that he 'would take orders from Mr. Reuben Gryzmish [the defendant] if he gave [the] witness any orders, but he never did give any orders. Took orders from everybody in the family, not particularly him or nobody [sic] else; * * * took orders from everybody that rode in the car and from [the defendant] just as much as from any other member of the family.' The assistant superintendent of the garage in which the car was kept testified that Kravatz was accustomed to take out the car 'about three times a day for some weeks or possibly months' preceding the day of the accident; that 'there was no limitation so far as the garage was concerned as to rights or Kravatz to take out car at any time'; that he had been the defendant ride in the car not oftener than once a week while the car was kept in the garage, and that 'he could not say that any one else except Kravatz preceding the 13th day of October took that car from the garage.' There was no evidence that any one other than Kravatz ever ran the car, or that he was in the employ of the defendant for any other purpose. In the registration certificate of the car the residence of the defendant is given as 'No. 1089 Boylston street, Boston Mass.,' which, as Kravatz testified, was the place where the defendant's mother resided; and on this and the further evidence of the chauffeur as to the family, the inference may the fairly drawn that the defendant and his mother were members of the same household. There is no evidence as to what was the business of the defendant, or indeed whether he had any business.

The only evidence of the general movements of the car immediately preceding the accident and of the purpose for which he was then using the car came from Kravatz, who testified in substance that on that day he started out from the garage with the car at about 12 o'clock noon; that he went from there directly to his house on Wayland street, in Roxbury near Grove Hall; that after dinner he started to go to 1089 Boylston street, to meet the defendant's mother at a quarter past 2...