Simmons v. Rabinowitz

• Decision Date: 01 February 1929
• Citation: 164 N.E. 806,266 Mass. 109
• Parties: SIMMONS v. RABINOWITZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

266 Mass. 109

164 N.E. 806

SIMMONS

v.RABINOWITZ.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 1, 1929.

Exceptions from Superior Court, Suffolk County; R. W. Irwin, Judge.

Action by Irving C. Simmons, p. p. a., against Thelma Rabinowitz. Judgment for plaintiff, and defendant brings exceptions. Exceptions sustained.

Automobiles k246(15)-Charge that agency of operator for owner of automobile could be inferred from owner's consent and approval to operator's use held erroneous.

In action against owner of automobile for injuries sustained in collision while automobile was being driven by owner's husband, charge that, if automobile was being driven with owner's consent and approval, it might be found that her husband was acting as her agent at time of accident, in which case owner might be found liable, held erroneous, as permitting jury to find agency on proof that automobile was being used with owner's consent and approval, without more.

B. Silverblatt, of Lowell, for plaintiff.

Joseph Wentworth, of Boston, for defendant.

SANDERSON, J.

The plaintiff, while standing on the sidewalk, was injured by the defendant's automobile which her husband, a licensed operator, was driving. In the early afternoon of the day in question he took the automobile from a garage and drove it to a store to buy cigars for himself and candy for a visitor at his house who was to leave by train that afternoon. After making the purchases he started toward his home to take his wife and the visitor to the station. Before reaching the house the automobile was hit by a motor vehicle approaching on the left from an intersecting street. The impact caused the defendant's automobile to go upon the sidewalk thereby injuring the plaintiff. The defendant, who held no operator's license, permitted her husband to use her automobile whenever he wished and approved any use he might make of it. There was evidence to justify a finding of negligence on the part of the defendant's husband in operating the automobile and of due care on the part of the plaintiff.

In his charge the judge subject to the defendant's exception instructed the jury that if the defendant's automobile ‘was being used with her consent and approval’ it might be found that her husband was acting as her agent at the time of the accident, and that if that were true, then the defendant might be found liable. Upon the evidence the finding might have been made that the driver, being on the way home to transport...