Mckeever v. Ratcliffe

• Decision Date: 22 May 1914
• Parties: McKEEVER v. RATCLIFFE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

218 Mass. 17

105 N.E. 552

McKEEVER v. RATCLIFFE.

Supreme Judicial Court of Massachusetts, Suffolk.

May 22, 1914

COUNSEL

Action by John McKeever against William L Ratcliffe.

There was a verdict for plaintiff, and defendant brings exceptions.

Overruled.

John P Vahey and Vahey & Casson, all of Boston (Philip Mansfield of Boston, of counsel), for plaintiff.

Dickson & Knowles, of Boston, for defendant.

OPINION

SHELDON J.

The liability of the defendant for the negligence of Hicks, his chauffeur, in driving the defendant's automobile depends upon whether Hicks then was acting within the scope of his employment. Cain v. Hugh Nawn Contracting Co., 202 Mass. 237, 239, 88 N.E. 842. The jury could find that Hicks was permitted by the defendant to use the automobile in going to his dinner at McCarthy's house and thence to McCarthy's shop on his way to the school on Newbury street. Reynolds v. Denholm, 213 Mass. 576, 100 N.E 1006. But on this occasion, instead of going from McCarthy's shop directly to Newbury street by the usual route, he took another and longer route, apparently for the purpose of carrying one Lydon to or towards the place to which Lydon wished to go. It was while driving along Washington street with Lydon, but in the general direction of the school, that the accident happened.

If these were all the facts, they would show plausible ground for the contention that when Hicks ran into the plaintiff, he was not doing the defendant's work, and was not acting within the scope of his employment, but was going on an independent journey for a purpose of his own, the accommodation of one whom he wished to befriend, and not at that time for the purpose of going to the school to carry the defendant's children home. McCarthy v. Timmins, 178 Mass. 378, 59 N.E. 1038, 86 Am. St. Rep. 490; Fleischner v. Durgin, 207 Mass. 435, 93 N.E. 801, 33 L. R. A. (N. S.) 79, 20 Ann. Cas. 1291; Mitchell v. Crassweller, 13 C. B. 237; Storey v. Ashton, L. R. 4 Q. B. 476. In that event, it of course would make no difference that he intended, after having accomplished his own independent purpose, to resume the performance of his duty to his master. But Hicks testified that he never was instructed by the defendant how to go to Newbury street, and could go thither by any route that he chose. Ritchie v. Waller, 63 Conn. 155, 28 A. 29, 27 L. R. A. 161, 38 Am. St. Rep. 361; Patten v. Rea, 2 C. B. (N. S.) 606.

He testified further that after the happening of the accident he told the defendant 'the whole story, just as it was,' and that the defendant said that he (Hicks) had a right to be there on Washington street, that there was nothing for him to worry about. The jury could find that this was an admission by the defendant that, as between himself and Hicks, the latter properly was driving the automobile in this place in the performance of his duty to the defendant. If so, the fact that Hicks has also the purpose of gratifying a private desire of his own in taking the route that he did was immaterial. Patton v. Rea, 2 C. B. (N. S.) 606.

In its essential features this...