Tommassen v. Feeley

• Decision Date: 26 June 1944
• Citation: 316 Mass. 547,55 N.E.2d 791
• Parties: TOMMASSEN v. FEELEY (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

316 Mass. 547

55 N.E.2d 791

TOMMASSEN

v.FEELEY (two cases).

Supreme Judicial Court of Massachusetts, Norfolk.

June 26, 1944.

Exceptions from Superior Court, Norfolk County; Goldberg, Judge.

Actions by Tegnander Tommassen and by Johanna Tommassen against Daniel Feeley for damages sustained in an automobile accident.To review an adverse judgment, defendant brings exceptions.

Exceptions sustained.

Before FIELD, C. J., and LUMMUS, QUA, DOLAN, RONAN, WILKINS, and SPALDING, JJ.

B. A. Sugarman, of Boston, for plaintiffs.

D. H. Fulton, of Boston, for defendant.

LUMMUS, Justice.

On November 3, 1940, the plaintiffs, husband and wife, while riding in Weymouth in an automobile operated by the husband, were hurt in a collision with an automobile operated by one Lind.Each plaintiff sued the defendant Feeley to recover for bodily injury, alleging negligence in one count and a violation of G.L.(Ter.Ed.)c. 90, § 12, in another.That section 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.’The male plaintiff claimed also in other counts damages for injury to his automobile and consequential damages arising out of the injury to his wife, and based his claims upon negliglence and also upon a violation of the statute cited.

The jury returned a separate verdict against the defendant upon each count.The defendant excepted to the denial of his motions for a directed verdict in his favor upon each count.He contends that he had no such relation to the operation of the automobile by Lind as to make him liable.

The material evidence came from the defendant, a Mrs. McCarthy, and Lind.All were called by the plaintiffs.From their testimony the following facts could be found.On Saturday, November 2, 1940, Lind and the defendant visited one Packard, a dealer in automobiles at Brockton, from who Lind wished to buy an automobile.Finding no satisfactory one, Lind asked Packard for the use of an automobile on the following day, Sunday, November 3, 1940.Lind told Packard that he had no license to operate one, but that the defendant had such a license.Packard let the defendant, and not Lind, take an automobile for use on the following day, warning both that Lind must not operate it.

On the following day, the defendant, his mother and his sister, Lind and Mrs. McCarthy, with whom Lind was ‘pretty friendly,’ rode in the borrowed automobile from Stoughton to Camp Devens and return.The defendant did all the driving.Late in the afternoon they got back to the defendant's house in Stoughton, where the automobile was stopped in a driveway with the engine key in the lock.Everyone got out and entered the house except the defendant and Lind.A few minutes lates Mrs. McCarthy came out of the house and got into the automobile.While she was on her way to the automobile, the defendant left it and went into the house to go to the bathroom.They passed each other but said nothing.As soon as the defendant had left the automobile, Lind moved over into the driver's seat, intending to drive Mrs. McCarthy home although nothing had been said about that.As soon as Mrs. McCarthy got into the automobile, Lind started it and drove her, not to her house a mile and a half away in Stoughton, but to a restaurant in Abington where they‘couldn't get in.’After they left the restaurant, the collision took place in Weymouth.Where they were going at the time, did not appear.

The defendant testified that he...