Reardon v. Coleman Bros., Inc.

• Decision Date: 03 December 1931
• Citation: 277 Mass. 319,178 N.E. 638
• Parties: REARDON v. COLEMAN BROS., Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

277 Mass. 319

178 N.E. 638

REARDON

v.COLEMAN BROS., Inc.

Supreme Judicial Court of Massachusetts, Middlesex.

Dec. 3, 1931.

Report from Superior Court, Middlesex County; Stanley E. Qua, Judge.

Action by Edward J. Reardon against Coleman Bros., Inc. Verdict for defendants. On report.

Judgment for defendants on the verdict.Frank J. Lehan and Thomas H. Mahony, both of Boston, for plaintiff.

Sewall C. Brackett, of Boston, and J. D. Sutherland, of West Roxbury, for defendant.

RUGG, C. J.

This is an action of tort to recover compensation for property damage and personal injuries arising out of a collision between an automobile owned and operated by the plaintiff and one alleged to have been negligently operated by one Auterio, an employee of the defendant, in the course of his employment. No question is made now concerning the due care of the plaintiff and the negligence of Auterio at the time of the collision. The sole issue is whether there was evidence to support a finding that the defendant was then responsible for the conduct of Auterio. Auterio testified in substance that for about two months prior to the collision he had worked for the defendant doing concrete work on the ‘Northern Artery’; that he owned the automobile which he was driving at the time of the collision and that it was registered in his name; that he used it to drive from his home to the place of his work in the morning and when the day's labor was over he rode home in it, and when his place of work was changed during the day he rode in his automobile, this all being for his own convenience; that at the time of the collission there were in the automobile with him two other employees of the defendant and a few pails, a gas can, an oil can and two brooms belonging to the defendant; that a foreman of the defendant told him to take these things and the two men and to go from the place where he was working to another place on the work, about a fifth of mile away if one should walk but by automobile ‘quite a way around,’ and to ‘hurry up and get over on the other side’ to a place indicated and to get a concrete mixer started; that on his way he chose to take the course he did because he found considerable traffic obstruction and other streets were closed; that prior to this day he had used his automobile at the request of the foreman of the defendant for carrying men or tools or cement bags, and one barrel, ‘quite a few times,’ ‘around nine or ten times'; that his automobile happened to be where it was when he started on the journey involved in the collision because he was working there; that the defendant never paid him anything on any occasion for the use of his automobile; that he never put in any bill to the defendant for its use; that he was not hiring his car out; that it was thus used as an accommodation. There was other testimony, but the summary already given discloses the aspect of the case most favorable to the plaintiff and therefore must be assumed to be true for the purposes of this decision, because at the conclusion of all the evidence a verdict was directed in favor of the defendant.

The test to determine whether the owner while driving his own automobile is acting as proprietor or as servant of another is whether he is in control so that he can at any time stop or continue and determine the way in which it shall be used or driven, not merely with reference to the result to be reached but with reference to the method of reaching that result even as to its small particulars. The vital inquiry concerns the right to control. If that right rests in the owner, he is acting as proprietor. If that right rests with another person, then he is the...