Pyyny v. Loose-Wiles Biscuit Co.

• Citation: 149 N.E. 541,253 Mass. 574
• Parties: PYYNY v. LOOSE-WILES BISCUIT CO.
• Decision Date: 24 November 1925
• Court: United States State Supreme Judicial Court of Massachusetts

253 Mass. 574

149 N.E. 541

PYYNY

v.LOOSE-WILES BISCUIT CO.

Supreme Judicial Court of Massachusetts, Worcester.

Nov. 24, 1925.

Exceptions from Superior Court, Worcester County; F. W. Fosdick, Judge.

Action of tort by Frank O. Pyyny against the Loose-Wiles Biscuit Company to recover for damage to plaintiff's automobile in collision with automobile driven by defendant's salesman. Verdict for plaintiff, and defendant excepts. Exceptions sustained, and judgment entered for defendant.

Master and servant k301(1)-Defendant, being without right to control traveling salesman's automobile, held not liable for colision.

Defendant being without right to direct manner in which its traveling salesman should control his car, and assuming no obligation, except to pay so much per mile for its operation in connection with his employment, held not liable for collision with plaintiff's automobile.

Chas. F. Baker, Emerson W. Baker, Ralph W. Robbins, and Samuel M. Salny, all of Fitchburg, for plaintiff.

S. B. Milton, of Worcester (C. C. Milton, of Worcester, on the brief), for defendant.

PIERCE, J.

This is an action of tort to recover damages to the automobile of the plaintiff, caused by a collision with an automobile driven by one Bancroft. It is admitted that Bancroft, as a traveling salesman, was in general employment of the defendant. It is also ‘admitted that Bancroft was negligent and that the plaintiff was careful.’ The sole issue raised by the exceptions, taken by the defendant to the refusal of the trial judge to direct a verdict for the defendant, ‘is whether or not at the time of the accident said Bancroft was operating the automobile in the course of his employment as a salesman of the defendant under such circumstances that the defendant is liable for his negligence at that time.’

Upon the question of the legal relationship between Bancroft and the defendant, the facts in their aspect most favorable to the plaintiff, taken from the examination and cross-examination of Bancroft, in substance are that he had been a traveling salesman for the defendant company since August, 1923, and was such at the trial in March, 1925; that ‘he had no regular hours to work; his time is his own and the trade that he can see any time at all during the 24 hours a day, he tries to see them’; that he owned the automobile that was in the collision, and used it in his business as traveling salesman; that his sole business was to sell biscuits for the defendant; that he...