Theriault v. Pierce

• Citation: 30 N.E.2d 682,307 Mass. 532
• Parties: THERIAULT v. PIERCE. WALSH v. SAME.
• Decision Date: 13 December 1940
• Court: United States State Supreme Judicial Court of Massachusetts

307 Mass. 532

30 N.E.2d 682

THERIAULT

v.PIERCE.

WALSH

v.SAME.

Supreme Judicial Court of Massachusetts, Worcester.

Dec. 13, 1940.

Exceptions from Superior Court, Worcester County; Morton, Judge.

Actions by Alida Theriault against Arthur J. Pierce and by Mary A. Walsh against the same defendant, for injuries sustained when automobile in which plaintiffs were riding with person permitted by defendant to drive the automobile struck parked truck. A verdict was directed for defendant. On plaintiffs' exceptions.

Exceptions overruled.

Argued before FIELD, C. J., and LUMMUS, QUA, COX, and RONAN, JJ.

H. G. Bowen, of Fitchburg, for plaintiffs.

W. M. Quade, of Gardner, for defendant.

QUA, Justice.

The plaintiffs were injured on Water Street in Fitchburg in the evening of February 6, 1938, when an automobile in which they were riding, operated by one Metivier, ran into the rear of a parked truck. See LeBlanc v. Pierce Motor Co. Mass., 30 N.E.2d 684.

It is necessary to note carefully the exact issues presented for decision. Each plaintiff in her declaration alleges that the automobile was under the control of the defendant; that he was negligent in allowing Metivier to operate it; and that the defendant allowed Metivier to operate while Metivier was under the influence of intoxicating liquor and when his license to operate had been revoked and had not been restored. No contention is made that Metivier was the defendant's agent or employee or that the defendant is liable for any negligence of Metivier. In open court the plaintiffs disclaimed any such contention. As the plaintiffs state in their brief, negligence on the part of the defendant himself in allowing Metivier to drive the automobile is the sole basis of their claims. The only exception in each case is to the direction of a verdict for the defendant.

The automobile was owned by the Pierce Motor Company, of which Pierce was president and treasurer. There was ample evidence that on the evening of the accident the automobile was bailed to the defendant, who had complete control over its movements; that, as the jury found in answer to a special question, the defendant allowed Metivier to take the automobile; and that when allowed to take it, Metivier was under the influence of liquor and also had no operator's license. There was further evidence that Metivier, after taking the automobile and in the absence of the defendant, invited the two plaintiffs to ride with him from Leominster into Fitchburg, and that the accident occurred on the way. The plaintiffs insist that the defendant violated G.L.(Ter.Ed.) c. 90, § 12, which provides in part that ‘No person shall allow a motor vehicle * * * under his control to be operated by any person who has no legal right so to do, or in violation of this chapter’ (see also sections 10, 23, 24); that such violation of law was evidence of the defendant's negligence; and that the cases should have been submitted to the jury.

There can be negligence only where there is a duty to be careful. Royal Indemnity Co. v. Pittsfield Electric Co., 293 Mass. 4, 6, 199 N.E. 69. It is idle to talk of negligence unless one keeps in mind also the nature of the duty, if any, which the party accused of negligence owes to the party claiming to have been injured. If these plaintiffs had been pedestrians or had been riding in some other vehicle, the defendant would have owed to them the duty to exercise care which in general every one owes to travellers rightfully upon the public ways, and evidence of the defendant's violation of law would have been evidence of a violation of that duty and therefore evidence of negligence for the consideration of the jury. Conroy v. Mather, 217 Mass. 91, 92, 93, 94, 104 N.E. 487, 52 L.R.A.,N.S., 801; McDonough v. Vozzela, 247 Mass. 552, 555, 559, 142 N.E. 831;Gordon v. Bedard, 265 Mass. 408, 164 N.E. 374;Peabody v. Campbell, 286 Mass. 295, 301, 305, 190 N.E. 521. But the plaintiffs had no inherent right as travellers on the highway to ride in an automobile in the general possession and control of the defendant with respect to which he stood as to them for the time being in the position of an owner. Walker v. Fuller, 223 Mass. 566, 112 N.E. 230. If the plaintiffs trespassed upon or converted the automobile, the defendant could maintain an action of tort against them. Brewster v. Warner, 136 Mass. 57, 49 Am.Rep. 5;Herries v. Bell, 220 Mass. 243, 107 N.E. 944, Ann.Cas.1917A, 423;Belli v. Forsyth, 301 Mass. 203, 204, 205, 16 N.E.2d 656, 118 A.L.R. 1335, and cases cited. See Mikaelian v. Palaza, 300 Mass. 354, 355, 356, 15 N.E.2d 480. When the plaintiffs stepped into the automobile the defendant's duty towards them ceased to be measured by his duty towards travellers in general. Driscoll v. Scanlon, 165 Mass. 348, 43 N.E. 100,52 Am.St.Rep. 523. From that moment the duty of care of the defendant towards the plaintiffs depended upon whether the plaintiffs were invitees, licensees or trespassers in the automobile. Walker v. Fuller, 223 Mass. 566, 568, 112 N.E. 230;Kennedy v. R. & L. Co., 224 Mass. 207, 209, 112 N.E. 872;Welch v. O'Leary, 287 Mass. 69, 191 N.E. 377;Foley v. John H. Bates, Inc., ...