Porcino v. De Stefano

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: CROSBY
• Citation: Porcino v. De Stefano, 243 Mass. 398, 137 N.E. 664 (Mass. 1923)
• Decision Date: 05 January 1923
• Parties: PORCINO v. DE STEFANO.

243 Mass. 398

137 N.E. 664

PORCINO

v.DE STEFANO.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 5, 1923.

Exceptions from Superior Court, Suffolk County; Stanley E. Qua, Judge.

Action of tort by Melindo Porcino against Antonio De Stefano for personal injury and damage to property alleged to have been caused by defendant's automobile truck running into plaintiff's wagon. Verdict for plaintiff for $700, and defendant brings exceptions. Exceptions sustained.

Plaintiff's evidence showed that the truck continued on its way without stopping after the accident and that plaintiff did not obtain its number or the name of the driver. Defendant excepted to the admission of evidenceclaimed to show defendant's ownership of the truck and employment of the driver. At the close of plaintiff's evidence defendant rested without introducing any evidence, and moved that a verdict be ordered in his favor, and saved an exception to the denial of the motion.John E. Crowley, of Boston, for plaintiff.

T. H. Calhoun and Edward J. Sullivan, both of Boston, for defendant.

CROSBY, J.

The plaintiff, while driving a horse attached to a wagon, received personal injuries and his horse and wagon were damaged, by reason of an automobile truck colliding with the wagon.

The plaintiff testified that he came from East Boston across the ferry and that the truck was behind him on the boat; that before the accident he had seen the truck which was used to carry bricks and sand; that he knew the defendant; that there was a sign on the truck, ‘De Stefano, Contractor’; that he had seen the truck in many places on different jobs where that contractor was working; that he saw the truck at a garage; that there was a sign on the garage reading, ‘De Stefano, Contractor’; that the word ‘Contractor’ was written in Italian; that ‘there were other automobiles in the garage stating De Stefano, Contractor’; that he saw the defendant there where he was ‘acting as a boss going about the garage’; that he saw the man who was driving the truck at the time of the accident on previous occasions when he was driving the truck; that before the accident he had seen this driver with the truck on the ferryboat and in other places, and that he had seen him carrying sand and gravel to a new street which the defendant was rebuilding; that there was a sign at this place on Atlantic avenue with the name on it, ‘De Stefano, Contractor’; that he had seen the driver of the truck on Everett street, East Boston, in front of the garage; that after the accident he went to the defendant's place and saw there the man who drove the truck and talked with him; that the direct way from the garage to the place on Atlantic avenue where the work was being done was across the ferry; that work was being done there about a month before the accident, and was still in progress about a month thereafter. He further testified that the truck was made of iron, without sides; that it was a threeton dump truck used to carry bricks, sand and other heavy material; that he had seen this driver carry and unload sand, stone and other material at the place in question on Atlantic avenue; and that at the time of the accident the truck was empty.

The foregoing is all the material evidence relating to the ownership of the truck, and upon the issue whether at the time of the accident it was being used in the business of the defendant. No question respecting the plaintiff's care or the negligence of the defendant is argued.

[1][2][3] If we assume that the truck was owned by the defendant, and that the driver was in his general employment, it remains to be determined whether there was any evidence to warrant a finding that at the time of the accident the driver was engaged in doing work he was directed to do. Perlstein v. American Express Co., 177 Mass. 530, 59 N. E. 194,52 L. R. A. 959. If the servant was not then engaged in the course of his employment but was acting for a purpose of his own, the master would not be liable. If the defendant was...