247 Mass. 476 | Mass. | 1924
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
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.