Marsal v. Same

• Decision Date: 29 November 1916
• Parties: MARSAL v. HICKEY. HASKELL v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

225 Mass. 170

114 N.E. 301

MARSAL

v.HICKEY.

HASKELL

v.SAME.

Supreme Judicial Court of Massachusetts, Worcester.

Nov. 29, 1916.

Report from Superior Court, Worcester County.

Actions by Harriet Marsal and Herbert Haskell against Frank Hickey. Directed verdict for the defendant. Case reported. Judgment for defendant.

Frank B. Hall and John H. Mathews, both of Worcester, for plaintiffs.

T. H. Gage, Frank F. Dresser, and Chas. A. Hamilton, all of Worcester, for defendant.

PIERCE, J.

These are actions of tort to recover damages, in the case of Harriet Marsal for personal injuries and in the case of Herbert A. Haskell for loss of property, arising out of a collision between a buggy in which the plaintiffs were driving and an automobile driven by Bruno P. Haas, who was returning from a picnic with a party of his friends, about 10 p. m. Saturday, August 1, 1915.

There can be no doubt that upon the evidence the questions of the plaintiffs' due care and the negligence of Haas were for the jury. The only question is whether at the time of the accident there was any evidence for the jury's consideration that Haas was the servant of the defendant acting within the scope of his employment; and the burden of showing that he was rested on the plaintiffs.

Upon this question the plaintiffs called as their only witnesses the defendant and Haas, whose testimony tended to show that the automobile was owned by the defendant and was duly licensed and registered in the name of the defendant; that Haas had a chauffeur's license and at the time of the accident was the defendant's chauffeur; that he lived with his father and mother but some nights slept at the house of the defendant; that he was paid by the hour and worked from seven o'clock in the morning until six o'clock at night; that he was employed by the day and paid by the week, which had been the custom existing between the defendant and Haas for several weeks or months prior to the accident; that the defendant had been interested for two or three years as a financial backer of the Shrewsbury Baseball Team, and when the team did not have any money to pay its bills he generally paid them; that he knew the ball-team was playing the day of the accident, that Haas played first-base and outfield, and that he had played with the team most of the games that year and the year before; that when the defendant went to the ball games he generally used his automobile himself; that he let Haas use the automobile at any time he asked for it, and at such times Haas would get the key to the garage and unlock it himself; that when Haas used the car the defendant furnished not only the car but gasoline, tires, and everything just as he did for himself; that on the day of the accident the defendant and Haas with others had been to one of these ball games, and that Haas returned to the house of the defendant, in the automobile in question, for dinner, as did also a gentleman named Clapp; that at the dinner the defendant gave Haas permission to take the automobile to go to Worcester to have his arm, lamed in the ball game, rubbed, and thereafter, to take Clapp and some ladies to ride; that Haas and Clapp went to Worcester and after Haas had had the arm rubbed they returned to Shrewsbury; that at the ball game that afternoon a party had been arranged, the ladies in which were to take lunch for all; the party was not to celebrate the victory of the ball-team; that on their return to Shrewsbury all those who constituted the party, except Clapp, were waiting for Haas and they started from the residence of a Mrs. Bliss, which was three quarters of a mile from the defendant's home in Shrewsbury.

Haas testified:

‘That he got the party up on his own hook, and had had these parties at different times; that, when he had these different parties, he used the defendant's car; did not own the car, but owned it that night he guessed; that he stopped...