Lewandowski v. Cohen

• Decision Date: 07 January 1921
• Citation: 237 Mass. 125,129 N.E. 378
• Parties: LEWANDOWSKI v. COHEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

237 Mass. 125

129 N.E. 378

LEWANDOWSKI

v.COHEN.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 7, 1921.

Exceptions from Superior Court, Suffolk County; Marcus Morton, Judge.

Action by Walter Lewandowski against Max Cohen. Verdict for plaintiff, and defendant excepts. Exceptions overruled.John H. Coakley, of Boston, for plaintiff.

Frost & Breath, of Boston, for defendant.

CROSBY, J.

There was evidence that the plaintiff while driving his horse on Chestnut street in Chelsea was injured by reason of a collision between an automobile operated by one Goodman and the plaintiff's wagon. The questions whether the plaintiff was in the exercise of due care, and whether Goodman was negligent, were properly left to the jury. It could have been found that the defendant was the owner of the automobile and that Goodman was in his general employ.

Goodman testified that on the afternoon of the day of the accident he polished, cleaned, oiled and greased the car and washed and worked on it at the defendant's garage until about 3 o'clock and then drove the defendant's son to the house of his aunt; that after driving to the defendant's yard, where he put oil and gas into the car, he took the defendant's bookkeeper to a street car at Chelsea Square; that he then started to return to the defendant's garage on Washington avenue; that after passing over several streets he finally got on Chestnut street, where the accident occurred.

[1] The circumstance that the defendant was the owner of the automobile at the time of the accident, and that the operator was in his general employ, is not enough to show that the servant was engaged in his master's business. Hartnett v. Gryzmish, 218 Mass. 258, 262, 105 N. E. 988;Gardner v. Farnum, 230 Mass. 193, 196, 119 N. E. 666, L. R. A. 1918E, 997;Weiner v. Mairs, 234 Mass. 156, 125 N. E. 149.

[2] While it appeared that in returning from Chelsea Square to the garage Goodman did not take the most direct route and at times was travelling away from the garage, it could not have been ruled as matter of law that at the time of the accident the deviation was so great that he was engaged in a purpose of his own and was not acting within the scope of his employment. These were questions of fact to be determined by the jury. A verdict for the defendant could not have been directed. McKeever v. Ratcliffe, 218 Mass. 17, 105 N. E. 552;Donahue v. Vorenberg, 227 Mass. 1, 116 N. E. 246;Mathewson v. Edison Electric Illuminating Co. of Boston, 232 Mass. 576, 581,...