275 Mass. 69 | Mass. | 1931
These are actions of tort for personal injuries sustained by the plaintiffs in April, 1928, while riding as guests of the driver in an automobile which was in collision with a motor vehicle operated by Clement E. Jones, president of the defendant, as well as a salesman for it and its sales manager. The jury found for the defendant.
The plaintiffs each saved two exceptions: one, to the allowance on May 9, 1930, of an amendment to the answers which, as originally filed, were general denials alleging also contributory negligence of the plaintiffs, and, as amended, set up the further defence that the driver of the automobile was not acting within the scope of his employment for the defendant at the time of the accident, that the relation between him and the defendant was not that of agent and principal or master and servant, and that the relation of agency as between Jones and the defendant did not exist at the time. The contention of the plaintiffs in regard to this matter is that their rights were prejudiced by the allowance of the amendments at the
The other exception was to the refusal of the judge to rule: “ When the president of a corporation operates his own car, which is taken from the showroom or storeroom of said corporation, for his own purposes, bearing the corporation’s dealer’s registration plates, it presents an inference for the jury which they may consider, that the corporation permitted the individual to use those plates and thereby assisted in creating a nuisance on the highway for which they were liable for injuries received therefrom, without proof that the person operating the vehicle was negligent.” The record states: “ The defendant’s automobile was registered in the name of the defendant corporation, bearing dealer’s plates number D71J. But the defendant’s automobile was owned by the operator, Clement E. Jones, and purchased with his personal check. On the day of the accident, both automobiles were being operated in the same direction on Commonwealth Avenue, going westerly. The defendant’s automobile was in advance of the car in which the plaintiffs were riding. As the defendant’s automobile made a left hand turn to enter Armory Street, it collided with the car in which the plaintiffs were riding, injuring the plaintiffs.” Jones, called as a witness in behalf of the defendant, gave testimony to the effect that the car he was driving on the day of the accident bore plates with the dealer’s number assigned to the defendant and used on its automobiles in connection with its business; that this automobile was owned, purchased and paid for by him and he placed the
The request might properly have been denied even if it were a correct statement of law, because the declarations were based solely on negligence of the defendant, its agents or servants in the operation of the automobile and the request related to a liability based solely on assisting in maintaining a nuisance. Duggan v. Woodis, 246 Mass. 431, 434.
But if the declaration had been so drawn that recovery might be had if the plaintiffs could prove that the defendant assisted in maintaining a nuisance, the ruling could not rightly have been given. On this theory of the case, the burden was on the plaintiffs to prove that the motor vehicle was not properly registered. Upon the evidence the defendant could be found to be a dealer in automobiles entitled to hold the general distinguishing number or mark issued to it as such dealer, with the right to cause or permit dealers’ plates to be attached to motor vehicles in its control. Such motor vehicles when operated with these number plates attached are by virtue
Exceptions overruled.