263 Mass. 244 | Mass. | 1928
These are two actions of tort by the same plaintiff, one against James Ayles and the other against Ella W. Ayles, his wife. At the close of all the evidence the defendant James Ayles moved for a directed verdict; to its allowance the plaintiff duly excepted. The defendant Ella W. Ayles moved for a directed verdict at the close of all the evidence, which was refused; the defendant duly excepted. In this case the jury returned a verdict for the plaintiff.
It was admitted at the trial that there was evidence from which the jury could find that the driver of the Ford sedan, one Carroll, was negligent and that the plaintiff was in the
The jury were warranted on the reported evidence in finding the following facts: On January 8, 1925, at about 7:15 p.m. the plaintiff as she was about to board a standing electric car was struck by an automobile, owned by the defendant James Ayles and driven by one Paul M. Carroll. The car which struck the plaintiff was registered in the name of James Ayles, one of the defendants. It was purchased for his own use and neither he nor his wife, the other defendant, could drive it. The Ayles family consisted of the defendants and a daughter, Dorothy, who had a license to drive. Paul M. Carroll, who was driving the car at the time of the accident, was the fiancé of Dorothy, who frequently used the car with and without the permission of her father. On several occasions she had taken her mother out to do errands and to make calls, and at the request of her father had gone to the store where he was employed to bring him home. There was no evidence that Carroll had a license to operate an automobile. On the night in question James Ayles did not know the car was being used. He saw his wife, daughter and Carroll with their hats and coats on, knew they were going out, and did not know where they were going or how. Carroll had driven the car before in defiance of the prohibition of the father, but never with his permission. While James Ayles was in the cellar, Carroll and Dorothy left the house. Carroll took his seat behind the wheel, Dorothy sitting beside him. As they were about to start Mrs. Ayles asked them, in substance, to wait for her as she wanted to go to her brother’s. They waited until she took her seat in the rear of the car. On the way to Boston she told them where to let her off, and she was left at the corner of Arlington Street and Boylston Street.
As to the defendant James Ayles, there is no evidence in the record other than the fact that he owned the automobile and permitted his daughter to use it as a member of his family. That such permission and knowledge of use do not create the relationship of master and servant or that of agency is well established in this Commonwealth; and it is equally well established that without such relation the owner of the car is not responsible- for the negligence of the driver. McGowan v. Longwood, 242 Mass. 337, 342. Field v. Evans, 262 Mass. 315. Van Blaricom v. Dodgson, 220 N. Y. 111. The direct evidence reported would not warrant a finding that Carroll was acting as the servant or agent of James Ayles, and no inference of such service can be drawn from the mere fact that he was driving the car in the presence and under the direction of Dorothy Ayles, who alone, on the evidence, • had a license to operate the automobile. Marsal v. Hickey, 225 Mass. 170. Lowe v. Antonelli, 245 Mass. 237. Rosenberg v. Karas, 259 Mass. 568. In this action the verdict was directed rightly and the exceptions must be overruled.
In the action against Ella W. Ayles the jury would not be warranted on the evidence in finding, from the fact that the defendant requested or even commanded her daughter and Carroll to carry her on her way to visit her brother, that she assumed control of the car and driver as soon as she entered the car and retained control until the accident. The
It results that the plaintiff’s exceptions are overruled in the action against James Ayles; and the defendant’s exceptions are sustained in the action against Ella W. Ayles, and judgment is to be entered for that defendant. G. L. c. 231,- § 122.
So ordered.