O'Rourke v. A-G Co.

• Decision Date: 26 February 1919
• Citation: 122 N.E. 193,232 Mass. 129
• Parties: O'ROURKE v. A-G CO., Inc., et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

232 Mass. 129

122 N.E. 193

O'ROURKE

v.A-G CO., Inc., et al.

Supreme Judicial Court of Massachusetts, Hampden.

Feb. 26, 1919.

Exceptions from Superior Court, Hampden County; John A. Aiken, Judge.

Action of tort by James O'Rourke, by next friend, against the A-G Company, Incorporated, and others. Defendants' motions for directed verdict at the close of plaintiff's evidence and at the close of all the evidence were overruled, and defendants except. Exceptions sustained, and judgment ordered for defendants.

R. J. Morrissey, of Westfield, and J. L. Gray, of Springfield, for plaintiff.

Scott Adams, of Springfield, for defendants.

DE COURCY, J.

The plaintiff was injured in a collision between a bicycle on which he was riding and an automobile of the defendant near the intersection of Taylor avenue and Main street, in Westfield. It could be found on the evidence that the plaintiff was using due care, and that the collision was caused by the negligence of Homer E. Munger, who was operating the automobile. The controlling question is whether Munger, at the time of the accident, was engaged in the business of the defendant, thereby making the corporation liable for his negligent conduct.

As we construe the record the trial judge refused to rule at the end of the plaintiff's case because the defendant did not then rest. See D'Addio v. Hinckley Rendering Co., 213 Mass. 465, 468, 100 N. E. 647, Ann. Cas. 1914A, 907. After all the testimony on both sides was submitted the defendant renewed his motion for a directed verdict; and we consider the case as presented on all the evidence.

It appears that the defendant was engaged in a car rental and express business, employing six chauffeurs, with a Ford automobile for each. Munger had been working for the company about three months. His duties were ‘driving cars for rentals or taking parties out for automobile trips.’ The accident happened shortly before noon on Sunday July 23, 1916. There was testimony on behalf of the defendant that, although Munger sometimes worked on Sunday, he had been permitted by the manager to use his car on this Sunday morning to take his family on a pleasure trip to his sister's house at Granby; that he had left the family there, returned alone to Westfield, and was on his way to the garage when the collision occurred.

[1][2][3] If this testimony was believed, plainly the defendant could not be held responsible for the injury suffered by the plaintiff. It is legally liable for an employé's negligent operation of its car only when that employé is engaged in the prosecution of its business and acting within the scope of his employment. Even assuming that the jury did not credit this testimony, the only relevant facts left in the record are, that the defendant owned the automobile and that Munger was in its general employment. As was said in Hartnett v. Gryznish, 218 Mass. 258, 262, 105 N. E. 988, 989:

‘Whatever may be the rule elsewhere * * * it never has been the rule here that simple proof of the ownership of the car by the defendant and that the chauffeur is his servant makes out a prima facie case for the plaintiff on the question whether on an occasion like that in the present case the chauffeur was acting within the scope of his employment.’

See, also, Marsal v. Hickey, 225 Mass. 170, 114 N. E. 301;Gardner v. Farnum, 230 Mass. 193, 119 N. E. 666;Phillips v. Gookin, 231 Mass. 250, 120 N. E. 691. The manager's consent to Munger's temporary use of the car for his own pleasure did not carry with it the corporation's responsibility for Munger's negligent conduct. Teague v....