O'Leary v. Fash

• Decision Date: 28 May 1923
• Citation: 140 N.E. 282,245 Mass. 123
• Parties: O'LEARY v. FASH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

245 Mass. 123

140 N.E. 282

O'LEARY

v.FASH.

Supreme Judicial Court of Massachusetts, Suffolk.

May 28, 1923.

Exceptions from Superior Court, Suffolk County; C. T. Callahan, Judge.

Action of tort by Agnes O'Leary against Reuben A. Fash for personal injuries sustained by plaintiff, when thrown from a truck owned by defendant and operated by one of its employees. Directed verdict for defendant, and plaintiff brings exceptions. Exceptions overruled.

Defendant was an ice cream manufacturer, and the driver of the truck was in his employ, and driving the truck in delivering defendant's ice cream. The evidence showed that plaintiff was riding in the truck by permission of the driver. The action was tried with another action for personal injuries sustained by a pedestrian struck by the truck. At the close of the evidence defendant moved for a directed verdict which was allowed, and plaintiff excepted.F. T. Doyle, of Boston, for plaintiff.

William Flaherty, of Boston, for defendant.

RUGG, C. J.

This is an action of tort to recover damages for personal injuries sustained by the plaintiff. There are two counts in the plaintiff's declaration; the first alleging that her injuries resulted from the wanton, willful, and reckless conduct of the defendant's servant in operating a motor truck on which she was riding, and the second count alleging that her injuries resulted from the gross negligence of the defendant's servant in operating a motor truck on which the plaintiff was riding. The evidence in its aspect most favorable to the plaintiff tended to show that the defendant, an ice cream manufacturer, employed one Taylor as chauffeur to drive a truck in delivering ice cream; that Taylor, while driving the truck in the course of his employment, was asked by the plaintiff and a companion for a ride, and that the two women got on the truck; that the plaintiff ‘sat with her feet over the right-hand side of the truck, and there was nothing on the seat to keep her from falling off. She could only hold onto the seat with her right hand.’ As the driver of the truck had proceeded along his way about three-quarters of a mile, and was on Cambridge street in Charlestown, a part of Boston, he drove for several hundred feet at the rate of 40 to 45 miles an hour, and without checking his speed turned into an intersecting street, whereby the plaintiff was thrown off the truck and injured.

[1] The plaintiff was a guest of the driver of the truck, who permitted her to ride with him gratuitously. As against him she could recover only by proof of gross negligence. Massaletti v. Fitzroy, 228 Mass. 487, 118 N. E. 168, L. R. A. 1918C, 264, Ann. Cas. 1918B, 1088;Flynn v. Lewis, 231 Mass. 550, 121 N. E. 493, 2 A. L. R. 896;Altman v. Aronson, 231 Mass. 588, 121 N. E. 505, 4 A. L. R. 1185;Bergeron v. Forest, 233 Mass. 392, 124 N. E. 74;Harvey v. Crane, 238 Mass. 571, 131 N. E. 168. Her rights against the defendant can mount no higher.

[2] In any aspect of her case the plaintiff must show that the driver of the truck in his conduct toward her was acting within the scope of the authority conferred upon him by the defendant. It is fundamental in the law of agency that the principal is responsible for all acts of his agent within the real or apparent scope of his authority, and conversely that the principal is not responsible for the acts of his agent outside the real or apparent scope of his authority. Brooks v. Shaw, 197 Mass. 376, 380, 84 N. E. 110.

[4] All the testimony in the case is to the effect that the driver of the truck had no express authority to carry the plaintiff on the truck but on the contrary had been forbiddento permit anybody to ride. No such authority arises by implication of law on the circumstances here disclosed. It is an obvious consequence of the principal's conduct in hiring a man to drive a truck in the delivery of freight that the public have no right to infer and do not understand the principal to confer upon such driver the authority to transport guests.

On the count for gross negligence the plaintiff cannot recover. The case at bar is within the authority of numerous decisions. It was said by Mr. Justice Holmes in Driscoll v. Scanlon, 165 Mass. 348, 43 N. E. 100,52 Am. St. Rep. 523, with respect to a similar action:

‘It was not within the scope of the employment of the driver of the dump cart to invite persons to drive upon it for their pleasure. Bowler v. O'Connell, 162 Mass. 319;Powers v. Boston & Maine Railroad, 153 Mass. 188, 190. * * * The defendant was not bound to expect or look out for people falling from his cart, where they had no business to be, and persons who got into it took the risk of what might happen as against him.’

The difference in liability of the employer to such a person and to one run down in the street by the driver there was pointed out. The same rule was applied to the unauthorized invitee in an automobile in Walker v. Fuller, 223 Mass. 556,112 N. E. 230. This principle is supported by the great weight of authority. Harrington v. Boston & Maine Railroad, 213 Mass. 338, 100 N. E. 606,45 L. R. A. (N. S.) 813, Ann. Cas. 1914A, 597;Files v. Boston & Albany Railroad, 149 Mass. 204, 21 N. E. 311,14 Am. St. Rep. 411;Goldberg v. Borden's Condensed Milk Co., 227 N. Y. 465, 125 N. E. 807;Rolfe v. Hewitt, 227 N. Y. 486, and cases collected at page 493, 125 N. E. 804, 14 A. L. R. 125;Kiernan v. New Jersey Ice Co., 74 N. J. Law, 175, 63 Atl. 998;Schulwitz v. Delta Lumber Co., 126 Mich. 559, 85 N. W. 1075;Hoar v. Maine Central Railroad Co., 70 Me. 65, 35 Am. Rep. 299;Dover v. Mayes Mfg. Co., 157 N. C.324, 72 S. E. 1067,46 L. R. A. (N. S.) 199;Dougherty v. Chicago, Milwaukee & St. Paul Railway Co., 137 Iowa. 257, 114 N. W. 902,14 L. R. A. (N. S.) 590, 126 Am. St. Rep. 282. To the same point is the able dissenting opinion in Highbee Co. v. Jackson, 101 Ohio St. 75, 128 N. E. 61, 14 A. L. R. 131.

The plaintiff, seeking to distinguish her case from those authorities, relies upon her count founded on willful, wanton, and reckless conduct of the driver of the truck. She contends that the defendant is responsible to her on this count on the doctrine that her own want of due care, whether regarded as contributory negligence or assumption of risk, is of no consequence. She relies in this connection on the leading case of Aiken v. Holyoke Street Railway, 184 Mass. 269, 68 N. E. 238, and the numerous cases which have followed it and illustrated the rule there established. The principle, on which that and like decisions rests, is that a trespasser or licensee has a right of action when suffering injury from willful, wanton and reckless misconduct of the owner or of his agents acting within the real or apparent scope of his authority, and that in such cases contributory negligence or want of due care constitutes no defense. Bjornquist v. Boston & Albany Railroad, 185 Mass. 130, 70 N. E. 53,102 Am. St. Rep. 332;Banks v. Braman, 188 Mass. 367, 74 N. E. 594;Romana v. Boston Elevated Railway, 218 Mass. 76, 82, 105 N. E. 598, L. R. A. 1915A, 510, Ann. Cas....