Little v. Levison

• Decision Date: 29 April 1944
• Citation: 55 N.E.2d 17,316 Mass. 159
• Parties: JAMES LITTLE v. DAVID I. LEVISON (and four companion cases [1]).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

316 Mass. 159

55 N.E.2d 17

JAMES LITTLE v. DAVID I. LEVISON (and four companion cases ^[1]).

Supreme Judicial Court of Massachusetts, Suffolk.

April 29, 1944

April 3, 1944.

Present: FIELD, C.

J., LUMMUS, QUA DOLAN, & WILKINS, JJ.

Agency, Scope of authority or employment. Trespass. Motor Vehicle, Trespass Operation, License to operate. Wanton or Reckless Conduct. Registration of an automobile did not constitute, under Section 85A of G.

L. (Ter. Ed.) c 231, prima facie evidence that the registered owner was legally responsible for conduct of another person as operator resulting in injury to one riding in the automobile on an invitation extended by the operator without authority of the owner.

The fact that the owner of an automobile, in violation of G. L. (Ter. Ed.) c 90, Section 12, permitted it to be driven by one who, without his knowledge, had no license to operate it, was not evidence of wanton or reckless conduct of the owner rendering him liable to one who was riding in the automobile on an unauthorized invitation of the operator.

FIVE ACTIONS OF TORT. Writs in the Municipal Court of the City of Boston, the first dated April 18, and the others April 23, 1940.

On removal to the Superior Court, the actions were tried together before Williams, J.

E. J. Donlan, for the plaintiffs. S. P. Sears, for the defendant.

WILKINS, J. These actions of tort are to recover for personal injuries sustained when the defendant's automobile, in which the plaintiffs were riding at the invitation of the driver collided with a street car. The only question presented is the correctness of the judge's action in directing verdicts for the defendant.

The declarations, which were substantially and in all material respects the same, were in six counts. Three counts were based on gross negligence, one alleging operation by an agent, another adding the allegation that the defendant allowed the automobile to be operated "by a person who had no legal right so to do, in violation of" G. L. (Ter. Ed.) c. 90, Section 12, and the third omitting the allegation of agency but including an allegation that the defendant allowed the automobile to be operated by an improper person. Three analogous counts were based on "wilful, wanton and reckless" conduct. The answer in each case contained a general denial and allegations of contributory negligence and that the automobile was not operated by "a person for whose conduct the defendant was legally responsible."

The evidence showed the following: On May 20, 1939, the defendant, a commercial florist, was the owner of a five-passenger Packard sedan. In his employ was one Kennedy, whose duty it was from time to time to drive the automobile in the conduct of the defendant's business. On the night of May 20 the defendant gave the automobile to Kennedy to take to the latter's home in Roxbury to repair it, with instructions to bring it back to the defendant's shop in Boston in the morning. Kennedy, who had been in the defendant's employ for about a month, held a Massachusetts operator's license authorizing him to operate trucks only. The defendant had never seen Kennedy's operator's license and did not know of this limitation. Kennedy took the automobile to his home, and the plaintiff Little and he worked on it for about an hour. Later they met the other four plaintiffs, and Kennedy invited all to take a ride. His offer was accepted, and during the ride Kennedy, according to the evidence, could have been found to have been racing with another automobile and, while travelling at a speed of sixty miles an hour, to have collided with a stationary street car, injuring the plaintiffs. There was no evidence that Kennedy was then engaged in any errand or business on behalf of the defendant unless the fact that the automobile was registered in the defendant's name as owner was such evidence.

The verdicts were rightly ordered. The defendant had neither invited, nor authorized anyone to invite, the plaintiffs to ride in his automobile. By entrusting it to Kennedy the defendant did not thereby empower him to extend guest privileges. Foley v.

John H. Bates Inc. 295 Mass. 557 , 561. The plaintiffs contend, however, that evidence of such authority is supplied by G. L. (Ter. Ed.) c. 231, Section 85A, which makes registration of the automobile in the defendant's name as owner "prima facie evidence that it was then being operated by and under the control of a person for whose conduct the defendant was legally responsible.

"

The statute does not make the defendant prima facie liable for every accident in which his automobile is involved. "After . . . [the statute] took effect proof of registry in the name of the defendant as owner, prima facie, is proof, also, that at the time of the accident the driver was a servant of the defendant and engaged in the owner's business; but it is not made prima facie evidence of anything more. The legal responsibility established is simply such responsibility as follows from the fact of agency and of action in the course of the owner's business. . . . the statute is not to be interpreted to mean that where evidence is introduced to show that a motor vehicle is involved in an accident or collision and is registered in the name of the defendant as owner, prima facie the defendant is liable. Rather it is to be taken to mean that ownership and registry in the defendant prima facie show the driver to be his agent acting within the scope of his business, and that, so far as those facts establish liability, prima facie the defendant is liable." Bruce v. Hanks, 277 Mass. 268 , 272. See Foley v. John H. Bates Inc. 295 Mass. 557 , 561; Dineasoff v. Casey, 306 Mass. 555, 556-557.

The rights of the parties in this respect are governed by O'Leary v Fash, 245 Mass. 123 , unless the fact that that decision antedated the passage of G. L. (Ter. Ed.) c. 231, Section 85A, makes a difference. In that case the defendant, an ice cream manufacturer, was the owner of a truck. An agent of the defendant "while driving the truck in the course of his employment" gave the plaintiff a ride, during which she was thrown off and injured. It was held that there was no liability for gross negligence or for wanton, wilful, or reckless conduct. On either ground the plaintiff failed, because it was not within the course of the driver's employment to invite persons to ride. Cases like Aiken v. Holyoke Street Railway, 184 Mass. 269 , were distinguished at pages 126 and 127, in the following language: "A trespasser or licensee has a right of action when suffering injury from wilful, wanton and reckless misconduct of the owner or his agents acting within the real or apparent scope of his authority...