Haskell v. Albiani

• Decision Date: 24 May 1923
• Citation: 245 Mass. 233,139 N.E. 516
• Parties: HASKELL v. ALBIANI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

245 Mass. 233

139 N.E. 516

HASKELL

v.ALBIANI.

Supreme Judicial Court of Massachusetts, Middlesex.

May 24, 1923.

Exceptions from Superior Court, Middlesex County; Henry T. Lummus, Judge.

Action of tort by Christine L. Haskell against Domenic Albiani for injuries claimed to have been sustained from the negligent operation of an automobile owned by defendant and driven by his son. Directed verdict for defendant, and plaintiff brings exceptions. Exceptions overruled.

The jury found for plaintiff for $18,500, and also answered three questions submitted to them and quoted in the opinion. After return of the verdict, the justice reserved leave to enter verdict for defendant, if on the question of law raised that court or the Supreme Judicial Court should decide that such verdict ought to have been entered, and thereafter, under the leave so reserved, entered verdict for defendant.

1. Parent and child k13(1)-Father not responsible for son's negligence in driving automobile, unless acting as servant within scope of agency.

Automobile owner was not responsible for negligent acts of his son in driving the car, unless the son at the time was his agent or servant, engaged in the performance of his business, or unless the act was subsequently ratified or adopted.

2. Master and servant k301(1)-Son held not engaged in father's business in returning with car after taking another son to pay social call.

Where automobile, which owner's two sons used, was taken for purpose of social call by one of the sons, another son, in returning with the car, held not engaged in his father's business, even though he, and not his brother, drove the car to the place of such call.

3. Master and servant k301(1)-That defendant kept in touch with his brother's children held insufficient to show son, in going to or returning from brother's house, was his servant.

That defendant's brother and the brother's wife were in Italy, and that defendant kept in touch with the brother's children, held insufficient to show that defendant's son, in driving automobile to the brother's house, or in returning therefrom, was defendant's agent or servant.

John L. Hall, of Boston, and C. C. Gammons, of Cohasset, for plaintiff.

Peabody, Arnold, Batchelder & Luther and S. H. Batchelder, all of Boston, and A. B. Carey, of Dorchester, for defendant.

CARROLL, J.

The plaintiff, while walking on a public highway, was struck and injured by an automobile owned by the defendant and operated by his son, Henry F. Albiani. The action was tried with another case by the same plaintiff against Henry F. Albiani. There was evidence of the plaintiff's due care and of the negligence of the operator.

The principal question raised by these exceptions is whether there was any evidence that at the time of the collision Henry F. Albiani was operating the automobile as the defendant's servant or agent. Three questions were submitted to the jury. The first question, Was Henry F. Albiani at the time of the collision operating the automobile ‘as the servant of the defendant Domenic Albiani, within the scope of an employment to carry the day's receipts to the house of an uncle of said Henry and return home?’ they answered in the negative. The second question, Was Henry F. Albiani at the moment of the collision operating the automobile as the servant of his father, ‘within the scope of an employment other than or in addition to that set forth in the preceding question?’ they answered in the affirmative, and answered in the negative to the question, ‘Was a defective condition of the emergency brake, constituting a violation of section 7 of chapter 90 of the General Laws, * * * of the defendant Domenic Albiani's automobile, negligently permitted by him to be operated at the time it came into collision with the plaintiff, a proximate cause of the injuries received by the plaintiff in such collision?’ Whereupon, upon motion of the defendant, a verdict was entered for the defendant, and to the granting of such motion and to the entry of said verdict the plaintiff duly excepted.

The automobile was kept by the defendant for the use and pleasure of himself and family, at his home in Hull. His family consisted of his wife and three sons, including Henry (23 years old) and Alfred (24 years old), who both were licensed to drive. The sons paid nothing for board or room. The machine was kept in a garage adjoining the defendant's house, and the keys to the car, controlling the switches, were hung in the kitchen of the house. Both sons were authorized to use the car to do errands connected with the household.

Alfred A. Albiani testified that on the night in question, with his father's permission and knowledge, he drove the automobile to his uncle's house, about three miles distant, and that his brother Henry ‘was going with him. They were going to make a social call;’ that on arriving he went into the house. The father stated, in answer to an interrogatory, he was informed that at the time of the accident Henry was returning from a place where he had taken his brother. Henry testified at the trial that his brother drove the automobile to his uncle's house. He also testified that, after leaving his brother he met two young women, whom he drove to Scituate, and was returning from this place when the accident happened;...