229 Mass. 202 | Mass. | 1918
The defendant is not responsible in damages because it owned the motor truck which through the carelessness of the driver came into collision with the plaintiff’s team while both were travellers upon a public way. The plaintiff must go further and offer evidence from which it could be found that the driver was the defendant’s servant. Trombley v.
It is plain from the uncontroverted evidence that while originally the defendant let the truck for hire, which included the services of a driver as in Shepard v. Jacobs, 204 Mass. 110, 112, it was operated at the time of the accident by an employee of the bailee, who is not shown to have had any knowledge of the conversation subsequent to the contract between the manager of his employer and the defendant’s manager, on which the plaintiff relies as sufficient to warrant the jury in finding liability. While the jury doubtless could say that upon the answer to the inquiry why a driver had not been sent, “that he had no driver to send; that if I wanted the truck, I would have to put on my driver,” the response was “that, if I put on my driver, he would have to be responsible for it,” and that without further colloquy the truck was accepted, and used as previously described, the silence of the defendant, even if found to be an implied assent to the terms proposed, was insufficient to make the employee involuntarily the servant of the defendant with whom he never had sustained any contractual relations. Morgan v. Smith, 159 Mass. 570. Samuelian v. American Tool & Machine Co. 168 Mass. 12. Driscoll v. Towle, 181 Mass. 416. Clancy’s Case, 228 Mass. 316. It follows that, the plaintiff not having been injured by any negligent act of the defendant, the exceptions must be sustained, and judgment entered for it under St. 1909, c. 236, § 1.
So ordered.