Moquin v. Kalicka, 247 Mass. 476

247 Mass. 476 | Mass. | 1924

Carroll, J.

This is an action for injuries received by the plaintiff, as the result of being struck by an automobile truck, owned by the defendant and driven by his brother, Benjamin Kalicka. The question to be decided is, Was there any evidence for the jury that the defendant was responsible for the operation of the truck by his brother?

Benjamin Kalicka testified that he lived with the defendant; that without the latter’s knowledge he took the truck from the garage; that “he was on his way to collect some money which was due to him personally ” when the collision occurred; that he had no operator’s license and when asked to show his license he took “ the . . . [defendant’s] license, which was in the automobile, and exhibited that.” The defendant testified that he did not give bis brother permission to use the truck at the time of the accident or at “ any other time.” There was evidence that Benjamin Kalicka within “ one half hour or forty-five minutes of the accident ” was seen “ delivering a package from this truck, which was done up apparently in brown wrapping paper.” One witness testified that Benjamin told him at the time of the accident that he (Benjamin) was wearing the defendant’s overcoat and had his brother’s registration and license.

There was nothing in the evidence to show that the driver was in the employment of the defendant, nor that he was his servant or agent. If the evidence of the defendant and the driver were believed, the truck was operated without the knowledge of the defendant by one who had no authority to operate it and who was not the agent of the defendant. If this evidence were not believed, there was no testimony showing that the driver was the servant of the defendant or his agent. Mere ownership of an automobile is not sufficient to prove that it was engaged in the owner’s business or was in the control of his agent. Trombley v. Stevens-Duryea Co. 206 Mass. 516. Canavan v. Giblin, 232 Mass. 297. Haskell v. Albiani, 245 Mass. 233.

The fact that the driver was seen delivering a package from the truck about the time of the accident and had the owner’s license in his possession, is not enough to show that he was engaged in the defendant’s business or that the truck was under the defendant’s control.

As there was no evidence warranting the submission of the case to the jury, judgment is to be entered for the defendant upon the verdict.

So ordered.