Conant v. Constantin, 247 Mass. 76

247 Mass. 76 | Mass. | 1923

DeCourcy, J.

The plaintiff, on September 4, 1920, was struck and injured by a Ford truck owned by the defendants and operated by Anastasios Maranis, who was in their employ. The accident occurred on the westerly side of Arlington Street, at or near a public alley which leads westerly from that street. The trial judge, sitting without a jury, found for the plaintiff.

The defendants now raise no question as to the plaintiff’s due care, or the negligence of Maranis; and have waived their exceptions to the judge’s refusal to give the requested rulings 1 and 2. The only remaining issue, raised in substance by the requests numbered 4, 5, 7, 9 and 10, is whether there was evidence warranting a finding that Maranis, an admitted employee, was acting within the scope of his employment at the time of the accident.

On the evidence the judge could find these facts: Maranis was in the general employ of the defendant partners. He had operated automobiles since 1917, had a license under New Hampshire laws, and had driven cars in Lowell, Boston and New York. During the week preceding the accident he had several times accompanied the defendants’ chauffeur, Barstow, while making deliveries from this same truck. On said September 4, he was operating a truck which admittedly was owned by the defendants; and one of the defendants, Constantin, was riding beside him. Although he had reentered their employ only a few days before, the defendant Constantin himself, during business hours, accompanied Maranis to the armory and assisted him in applying for a chauffeur’s license. Subsequently Constantin said to the witness Tillinghast that the time of the accident was included in the regular working hours of Maranis.

These significant facts, with the inferences properly deducible therefrom, warranted the trial judge in finding that said employee was acting within the scope of his employment when he drove the truck upon the sidewalk and against the plaintiff. The judge properly could discard such portions of the testimony of Constantin and Maranis, unfavorable to the plaintiff’s claim, as he deemed unworthy of belief, because inherently improbable, or in conflict with the conceded facts and reasonable inferences. As in many similar cases, the only available testimony as to the scope of a chauffeur’s employment came from him and his employer. The judge might well scrutinize their story, improbable in many details, which tended to shield a culpable chauffeur and an interested employer, and which the injured plaintiff could not contradict by any direct testimony. Ouimette v. Harris, 219 Mass. 466. Heywood v. Ogasapian, 224 Mass. 203. Teague v. Martin, 228 Mass. 458. Barney v. Magenis, 241 Mass. 268, 271. See also Chandler v. Broughton, 2 L. J. (N. S.) Ex. 25. Bell v. Jacobs, 261 Penn. St. 204, 208. Baker v. Maseeh, 20 Ariz. 201, 206. Daggy v. Miller, 180 Iowa, 1146, 1151. Commonwealth v. Sherman, 191 Mass. 439, 441.

The requests referred to were denied rightly. As to the thirteenth and sixteenth, the reasons stated by the trial judge were sufficient to warrant his refusal to give them. In view of the conclusion reached, it is unnecessary to consider whether the liability of the defendants could be based on their alleged violation of G. L. c. 90, § 12, which prohibits the owner of a motor vehicle from allowing it to be operated by any person who has no right to do so.

Exceptions overruled.