Poirier v. Terceiro

• Decision Date: 21 June 1916
• Parties: POIRIER v. TERCEIRO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

224 Mass. 435

113 N.E. 204

POIRIER

v.TERCEIRO.

Supreme Judicial Court of Massachusetts, Bristol.

June 21, 1916.

Exceptions from Superior Court, Bristol County; John D. McLaughlin, Judge.

Action for tort for personal injuries by Ralph Poirier against Manuel R. Terceiro. Verdict for plaintiff, and defendant excepted. Exceptions sustained.

Baker & Thurston and Benj. Cook, Jr., all of Fall River, for plaintiff.

Frank M. Silvia and E. T. Murphy, both of Fall River, for defendant.

CARROLL, J.

The bill of exceptions states that Osborne street, in the city of Fall River, had been duly licensed for coasting. The plaintiff, while on a sled on this street, was injured by a horse owned by the defendant and ridden by his minor son. The only question presented is: Was the minor son of the defendant, his servant, and acting within the scope of his employment?

The defendant denied any knowledge of the use of the horse by the boy, or any permission to use it. This evidence was not contradicted. There was nothing to show for what purpose the boy was riding the horse, and even if it could be argued that on this day the horse needed sharpening, that the defendant's blacksmith was Shea, whose shop was on Eleventh street, and that the defendant's son was either going to or returning therefrom, there is no evidence to show that this was done with the knowledge or consent of the defendant. The plaintiff's father testified he had seen the defendant's son several times driving this horse attached to a grocery wagon; but there was nothing to show that the boy was acting as the servant or agent of the defendant at the time of the plaintiff's injury. Trombley v. Stevens-Duryea Co., 206 Mass. 516, 92 N. E. 764;Fletcher v. Willis, 180 Mass. 243, 62 N. E. 2.

As, on the evidence presented, the boy could not be found to have been in the employ of the defendant at the time of the plaintiff's injury, it becomes unnecessary to decide whether in going to or returning from the blacksmith shop he was called upon to pass over Osborne street, and so had departed from the scope of his employment, even if he were then the defendant's servant.

There being no evidence of the employment by the defendant of his minor son, no inference could be drawn against him from his failure to call him as a witness. In Tully v. Fitchburg R. R., 134 Mass. 499, 502, the plaintiff was struck at a crossing by one of the defendant's engines. The engineer and fireman in charge of the engine, were in...