Gondek v. Cudahy Packing Co., 233 Mass. 105

233 Mass. 105 | Mass. | 1919

Rugg, C. J.

These are four actions of tort whereby the plaintiffs seek to recover compensation for injuries sustained by them on June 22, 1918, through collision with an automobile owned by the defendant. Confessedly the plaintiffs, at the time travellers on a highway in Dracut in this Commonwealth, were in the exercise of due care and the operator of the automobile was negligent.

The defendant is a corporation domiciled in Maine, but had maintained in 1918 for more than thirty days before the plaintiffs’ injuries several places of business in Massachusetts. It also maintained at Nashua, in the State of New Hampshire, a place of business in connection with which the automobile in question was used. It was registered in New Hampshire but not in Massachusetts. It was purchased in July, 1917, by the defendant on requisition from one Lacaillade who for over five years had been manager of the defendant’s business at Nashua. It appeared that in 1917 Lacaillade used the automobile five or six times to go from Nashua to Lawrence in this Commonwealth, chiefly on business of his own, but there was no evidence on the point whether it was registered in Massachusetts in that yéar. He occasionally, and whenever he so desired, used it in his own business around Nashua without complaint by the defendant. He had sole control over its use. He had ten or twelve men under him in the employ of the defendant at Nashua where a general meat packing business and the business of storing furs and household furniture was conducted. There were executive officers of the defendant in Boston but none in New Hampshire. A general superintendent visited the Nashua place of business every other week, and perhaps once or twice a year other officers of the defendant went there. On June 22, 1918, Lacaillade having sold a gas stove, which he had stored without pay for several months in the defendant’s storehouse at Nashua, to his cousin in Lawrence, Massachusetts, asked one Larivee, employed by the defendant as chauffeur at Nashua, to take the stove to its new owner. It was while returning to Nashua from that journey to Lawrence that the automobile came into collision with the plaintiffs, causing the injuries here in suit.

The automobile at the time of the accident was an outlaw upon the highways of Massachusetts. The defendant was not a “nonresident” within the meaning of-St. 1909, c. 534, § 1, as amended by St. 1914, c. 204, § 1, in force on the day of the accident. By that statute “non-resident” as used in the automobile, laws, in substance, is defined to mean “residents of States or countries who have no regular place of abode or business in this Commonwealth for a period of more than thirty days in the calendar year.” It is conceded that the defendant had places of business in Massachusetts. Therefore the provisions of the automobile law respecting non-residents were not applicable to it. It was subject respecting all its automobiles within the Commonwealth to the absolute prohibition against operating them upon the highway unless registered in accordance with our law. St. 1909, c. 534, § 9. Dudley v. Northampton Street Railway, 202 Mass. 443. Holden v. McGillicuddy, 215 Mass. 563, 565. Dean v. Boston Elevated Railway, 217 Mass. 495, 498. The words of the statute are so plain as to render any other construction not rationally possible.

If it be thought harsh to impose such stringent liability upon actual non-residents who have places of business in this and other States, relief must be sought from the Legislature and not from the judiciary. See St. 1919, c. 88.

There is no evidence whatever to the effect that the automobile at the time of the accident was being operated on the business of the defendant. The evidence shows that it was a . personal matter of Lacaillade upon which it was driven into Massachusetts.

. There is no evidence on this record which warrants the con-, elusion that the defendant expressly or impliedly authorized Lacaillade, the manager of its Nashua branch, to operate or cause to be operated its automobile on the highways of Massachusetts on his own business. There was evidence from which the inference might be drawn that Lacaillade was authorized to use the automobile in the neighborhood of Nashua on his own business and pleasure. The general course of conduct would constitute evidence to that end. But it was a wholly different matter to use the automobile in Massachusetts. The operation of the automobile in Massachusetts by the authority of the defendant not only would subject it to a fine, St. 1909, c. 534, § 10, but also would render it liable to heavy and unusual civil liability. It would be responsible for injuries caused by the negligent operation of the automobile even though not at the time being used in its business. The consequence of one permitting a nuisance, such as an unregistered automobile operated upon a highway, is that he is responsible for injuries caused thereby even though it is at the moment being used in the business or pleasure of another. Gould v. Elder, 219 Mass. 396. Koonovsky v. Quellette, 226 Mass. 474. Authority to impose liabilities of this kind upon the defendant, having their origin in authority to commit a. crime, cannot be inferred from mere employment as manager of a business dealing in the necessities of life. For all things done within the natural course of the management of its Nashua branch and in furtherance of its business by Lacaillade, the defendant would be liable. On the occasion in question the automobile was not being used to promote its affairs but for something quite outside rs business.

There is nothing in the evidence- which warrants the inference that the defendant knew or ought to have known that Lacaillade was using the' automobile in Massachusetts for his own business or pleasure, so that acquiescence in such use might be implied.

The day of the accident was the first time it had been used in Massachusetts in 1918. If it be assumed in favor of the plaintiffs that the automobile was not registered in Massachusetts in 1917, the use of it by Lacaillade five or six times to visit his family in Lawrence is not enough to fasten knowledge, consent and responsibility upon the defendant under all the circumstances. It does not appear that this use was at times and under conditions likely to come to the attention of the defendant.

The defendant’s requests for instructions plainly cover this point. The remarks of counsel respecting the form of the third question did not amount to a waiver of his requests and do not appear to have misled the judge in any particular. They were made after the requests for rulings had been denied and the law thus established for the trial.

Exceptions sustained.