Kingsbury v. Terry

• Decision Date: 27 June 1938
• Parties: KATHERINE W. KINGSBURY v. GEORGE S. TERRY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

300 Mass. 516

16 N.E.2d 48

KATHERINE W. KINGSBURY v. GEORGE S. TERRY.

Supreme Judicial Court of Massachusetts, Plymouth.

June 27, 1938

May 4, 1938.

Present: LUMMUS QUA, DOLAN, & COX, JJ.

Agency, What constitutes. Motor Vehicle, Operation.

Evidence left it a question of fact whether one owning and riding in an automobile driven at the time of an accident by his eighteen year old daughter, whom he was about to leave in charge of his other children and the automobile at a summer resort retained or had relinquished control of it to her at the time of the accident; and if he had relinquished control the daughter was not his agent and her negligence contributing to the accident was not imputable to him.

TORT. Writ in the District Court of Brockton dated November 14, 1936. Upon removal to the Superior Court, the action was tried before Dillon, J. There was a verdict for the plaintiff in the sum of $5,016.25. The defendant alleged exceptions.

W. F. Hallisey, for the defendant. E. J. Campbell, for the plaintiff.

COX, J. This is an action of tort to recover for personal injuries sustained by the plaintiff, and for damage to her automobile in which she was riding when it was in collision with an automobile owned and operated by the defendant. The bill of exceptions states that the evidence warranted a finding of negligence on the part of the defendant and also a finding of "either negligence or due care on the part of the plaintiff's" eighteen year old daughter, Alice, who was operating the plaintiff's automobile at the time of the collision. The jury could have found that on the Friday prior to the accident, the plaintiff, who lived in New York and her family of four children, of which the operator of the automobile was the oldest, arrived in Dennis, where the children were to remain for the summer. The plaintiff intended to return to New York on the day following the accident, and had made arrangements with her daughter Alice "concerning the children and the automobile." After the plaintiff's husband became disabled, Alice had looked after the other children and had managed the household upon an allowance, the plaintiff being engaged in business. On the day of the accident, Alice proposed that the children go to a nearby bathing beach and asked the plaintiff if she wished to go for a ride. All of the party, except the plaintiff, were dressed in their bathing suits. The latter did not intend to go in bathing. She expressed a wish to mail some letters if a post office was passed but the primary purpose of the ride was to go to the beach where the children could go in bathing. During the ride the plaintiff in no way attempted to direct or control the operation of the automobile or the route that was taken. Alice considered that she was in charge of the automobile and did not ask the plaintiff's permission to take it. "It was understood that I [Alice] could have the car whenever I wanted it. I didn't have to ask permission." The plaintiff considered that Alice was in charge of the car and that "it was her responsibility." At times the plaintiff operated the automobile but had not done so since her arrival at Dennis. When the accident occurred the plaintiff was seated on the rear seat. The jury found for the plaintiff.

The defendant seasonably requested the following rulings: "1. Upon all the evidence the plaintiff was in the legal control of the automobile in which she was riding at the time of the accident. 2. If the jury find that the operator of the automobile in which the plaintiff was riding was negligent and that such negligence contributed in a material degree to cause the accident, the plaintiff is not entitled to recover. 3. On all the evidence in this case any evidence of negligence of the operator of the plaintiff's automobile is imputable to the plaintiff."

In the case of Deyette v. Boston Elevated Railway, 297 Mass. 129 which cannot be distinguished in principle from the case at bar, the court passed upon the refusal of the trial judge to give three requests for rulings which are identical with those in this case. In that case it was said (at page 428) "It is true, as a general rule of law, that the test of the existence of the relationship of master and servant is the right of control and not the actual exercise of control." The court held, however, that upon the evidence the jury could have found that "on the day of the accident the plaintiff had surrendered to her son the control of the automobile in which she was riding," and that the case was rightly submitted to the jury. The daughter Alice testified,...