Simone v. Barr

• Decision Date: 27 November 1925
• Parties: DE SIMONE v. BARR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

254 Mass. 79

149 N.E. 624

DE SIMONE

v.BARR.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 27, 1925.

Exceptions from Superior Court, Suffolk County; Edw. T. Broadhurst, Judge.

Action of tort by Michael De Simone against Arthur L. Barr to recover for injuries in collision with automobile operated by defendant's alleged agent. Verdict was directed for defendant, and plaintiff excepts. Exceptions overruled.

1. Master and servant k302(6)-Owner of automobile not liable for negligence of employee when driving automobile for his own pleasure.

Where defendant's automobile was loaned to his employee, who was using it for his own pleasure, defendant was not liable for employee's negligence.

2. Highways k184(2)-Contention that defendant's automobile was public nuisance not sustained under evidence.

In action for damages in automobile collision, contention that defendant's motor car was registered under G. L. c. 90, s 5, and was loaned for more than five successive days to defendant's employee, and ceased to be a registered car, and when used on public ways by employee with permission of owner was a public nuisance, held not sustained by evidence.

Samuel Bailen and Roger B. Brooks, both of Boston, for plaintiff.

Badger, Pratt, Doyle & Badger, of Boston, for defendant.

CARROLL, J.

The plaintiff was injured by reason of the collision of a motorcycle, in the side car of which he was riding, with an automobile operated by one Tirrell and owned by the defendant. Tirrell was employed by the defendant, but at the time of the collision he was driving the automobile for his own purposes, and not in connection with the defendant's business. In the superior court a verdict was directed for the defendant.

[1] The automobile was lent to Tirrell. He was using it on an errand of his own. This evidence was not contradicted. In these circumstances the defendant is not liable for the negligence of Tirrell. Marsal v. Hickey, 225 Mass. 170, 114 N. E. 301.

[2] There was evidence that the automobile was registered ‘under a number plate issued to the defendant Barr as a dealer of cars; * * * that the number plate of the car was 01407D, and that this is a dealer's number’; that ‘the automobile which figured in the accident had been used by’ Tirrell ‘for several months prior to the accident’; that he ‘used the car ‘only as a loan’; * * * that he used the car to drive to Boston to buy supplies; * * * that the automobile in question was kept at all times in the defendant's garage'; that the car was ‘loaned’ to him (Tirrell) when he went to work for the defendant in January, 1918, and he used the car until he ceased to work for Barr in December, 1920. It also appeared that Tirrell had an operator's license but not a chauffeur's license.

The plaintiff contends that the defendant's motor car was registered under G. L. c. 90, § 5. That section provides that all motor vehicles owned or controlled by a dealer shall be regarded as registered under the general number or mark issued to him by the registrar, ‘until sold or let for hire or loaned for a period of more than five successive days.’ The contention of the plaintiff is that, the automobile in question having been registered under this section of the statute, it was ‘loaned’ for more than five successive days and it therefore ceased to be a registered car; and when used by Tirrell on the...