300 Mass. 516 | Mass. | 1938
This is an action of tort to recover for personal injuries sustained by the plaintiff, and for damage to her automobile in which she was riding when it was in collision with an automobile owned and operated by the defendant. The bill of exceptions states that the evidence warranted a finding of negligence on the part of the defendant and also a finding of “either negligence or due care on the part ,of the plaintiff’s” eighteen year old daughter, Alice, who was operating the plaintiff’s automobile at the time of the collision. The jury could have found that on the Friday prior to the accident, the plaintiff, who lived in New York, and her family of four children, of which the operator of the automobile was the oldest, arrived in Dennis, where the children were to remain for the summer. The plaintiff intended to return to New York on the day following the accident, and had made arrangements with her daughter Alice “concerning the children and the automobile.” After the plaintiff’s husband became disabled, Alice had looked after the other children and had managed the household upon an allowance, the plaintiff being engaged in business. On the day of the accident, Alice proposed that the children go to a nearby bathing beach and asked the plaintiff if she wished to go for a ride. All of the party, except the plaintiff, were dressed in their bathing suits. The latter did not intend to go in bathing. She expressed a wish to mail some letters if a post office was passed but the primary purpose of the ride was to go to the beach where the children could go in bathing. During the ride the plaintiff in no way attempted to direct or control the operation of the automobile or the route that was taken. Alice considered that she was in charge of the automobile and did not ask the plaintiff’s permission to take it. “It was understood that I [Alice] could have the car whenever I wanted it. I didn’t have to ask permission.” The plaintiff considered that Alice was in charge of the car and that “it was her responsibility.” At times the plaintiff operated the automobile but had not done so since her arrival at Dennis. When the accident occurred the plaintiff was seated on the rear seat. The jury found for the plaintiff.
In the case of Deyette v. Boston Elevated Railway, 297 Mass. 129, which cannot be distinguished in principle from the case at bar, the court passed upon the refusal of the trial judge to give three requests for rulings which are identical with those in this case. In that case it was said (at page 428) “It is true, as a general rule of law, that the test of the existence of the relationship of master and servant is the right of control and not the actual exercise of control.” The court held, however, that upon the evidence the jury could have found that “on the day of the accident the plaintiff had surrendered to her son the control of the automobile in which she was riding,” and that the case was rightly submitted to the jury. The daughter Alice testified, in connection with her mother’s intended return to New York, that “she . . . was going to take care and have the responsibility of her brothers and sisters, and to drive the automobile in her mother’s absence.” The defendant contends that this indicates an arrangement which was not to commence until the plaintiff left Dennis, but the jury may not have adopted this evidence and, in any event, the plaintiff is not bound by it. Country Club Soda Co. Inc. v. Arbuckle, 279 Mass. 121, 129, and cases cited. We think there was no error in the denial of the three requests for rulings.
The defendant also excepted to a portion of the judge’s charge which covers substantially three pages of the printed record. There is nothing in the record to indicate that the attention of the judge was directed to any particular thing which he said or that any suggestion whatever was made to him as to anything which he might say by way of either
Finally, the defendant contends that no instructions were given to the jury on the plaintiff’s right to control, based upon her ownership of the automobile, as distinguished from actual control. The quoted portion of the judge’s charge is to be considered with what else was said. The judge gave full instructions as to the legal consequences where a master or principal is injured by reason of the negligence of his servant or agent. The jury was told that it was to determine “whether the mother was in absolute control, by reason of her ownership of the car, and that, therefore, the ■ driver was her agent or servant, and doing her bidding.” Just prior to the quoted part of the charge to which objection is now made, and after the plaintiff’s ownership of the automobile had been referred to, the judge said: “Now, it is for you to say, gentlemen,
Exceptions overruled.