Hoffman v. Liberty Motors Co.

• Citation: 234 Mass. 437,125 N.E. 845
• Parties: HOFFMAN v. LIBERTY MOTORS CO., Inc.
• Decision Date: 09 January 1920
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

234 Mass. 437

125 N.E. 845

HOFFMAN

v.LIBERTY MOTORS CO., Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 9, 1920.

Exceptions from Superior Court, Suffolk County; J. F. Connell, Judge.

Action by John F. Hoffman against the Liberty Motors Company, Incorporated. Verdict for plaintiff, and defendant excepts. Exceptions overruled.

J. J. O'Hare, of Boston, for plaintiff.

Wm. Flaherty and Roger Clapp, both of Boston, for defendant.

BRALEY, J.

[2][4] The exceptions recite that at the time of the collision between the plaintiff's automobile driven by himself, and an automobile owned by the defendant, but operated by one Bowers, the plaintiff ‘was guilty of no contributory negligence, but that Bowers the operator of the defendant's automobile was negligent.’ A verdict having been returned for the plaintiff, the only question presented is whether there was any evidence which warranted the jury in finding that Bowers acted as the defendant's servant or agent. The credibility of the witnesses was for the jury, and on the evidence of Bowers they properly could find, that in ‘ a general way’ he was employed by the defendant as a salesman and demonstrator of cars in the active sale of which the defendant was engaged. It was a part of his duty to take out cars on the streets ‘to demonstrate them,’ only when directed by the general manager. If a sale resulted he was paid a commission, but received no compensation denominated as wages or salary. It further appeared that having been informed by one Finnegan ‘that he was in the market for a small roadster’ or ‘Scripps-Booth’ automobile, Bowers told the manager of the opportunity of getting a customer and making a sale, who thereupon in the afternoon of the day of the collision named the price, and ordered him to take the car out, and ‘to do my best, and do not keep it out after 1 o'clock.’ While no directions were given as to the streets or territory over or through which the car was to be run, the route selected and the distance travelled the jury could say was not only left to Bowers' discretion, but also was within reasonable limits for the purpose of satisfying Finnegan of the qualities of the car, which he finally agreed to buy. But Bowers having testified that, ‘we went out for a ride towards Roslindale,’ and that he and Finnegan and one Gilbert a companion of Finnegan indulged to some extent in the use of intoxicating liquors while the demonstration was in progress, the defendant...