Ouimette v. Harris

219 Mass. 466 | Mass. | 1914

De Courcy, J.

At some time during the evening of July 23, 1911, in the town of Longmeadow, a collision occurred between an automobile owned by the defendant and a carriage owned by the plaintiff Joseph Ouimette, in which the plaintiffs George Ouimette and Elizabeth Donnelly were travelling. There was evidence that the plaintiffs who were in the carriage were in the exercise of due care, and that the driver of the automobile was negligent in the running of it at the time of the accident.

The plaintiffs introduced evidence that the defendant himself was in the automobile at the time, and the defendant introduced testimony to the contrary. On the issue thereby raised there is no question of law before us. The evidence offered by the defendant also tended to show that the automobile was being driven by one Pease, who was in his employ; but that Pease was not acting within the scope of his employment at the time of the accident. The defendant requested certain rulings on this issue and the refusal to give the second and third raises the main question before us. That is, in substance, was there evidence to warrant a finding that the driver of the car was acting within the scope of his employment?

If the verdict for the plaintiffs was based on this issue, the jury must have rejected much of the testimony of the defendant and of Pease, the two persons whose relation to each other was involved. The remaining testimony on the question was meagre, and perhaps necessarily so. It consisted chiefly of statements alleged to have been made by the defendant himself on the morning after the accident, and near the scene thereof, to the effect that Pease was one of his best men, that Pease and himself did all of the demonstrating for the defendant, and that Pease had told him on the day of the accident that he “wanted to take the car out to demonstrate it to somebody, ... to show it to a party,” and he, the defendant, “let him take it.” In addition to this, however, the jury properly might infer that when Pease later in the day took the car from the garage he was acting in pursuance of the purpose so expressed by him, and as expressly authorized by the defendant. So far as appears he never drove the defendant’s cars except as a demonstrator. As probably is usual in the process of demonstrating an automobile, no limits were prescribed by the defendant in this alleged conversation as to where Pease should take the car, how he should drive it, or when he should return. In view of all this testimony and the reasonable inferences we cannot say that there was not evidence to be submitted to the jury on the question whether Pease was doing the defendant’s work, and acting within the scope of his employment on the evening of the accident. Reynolds v. Denholm, 213 Mass. 576. McKeever v. Ratcliffe, 218 Mass. 17. Campbell v. Arnold, ante, 160.

The second and third requests were refused rightly, and the eighth was adequately covered in the full and correct charge. On the evidence the issues were, Was Pease using the car in the work of, and by the permission of, the defendant? or Was he using it for his own pleasure and without permission? There was no evidence that he “had been granted permission to use the car for his own purposes,” and the judge properly refused to give the • sixth request without modification.

The evidence of self-serving statements made by Pease in Connecticut on the morning of the accident was not admissible on any ground suggested by the defendant. His visit to the Saltonstall Inn was not material to the issues tried, and accordingly his declarations made at that place could not be admitted as verbal acts or as part of the res gestae. Whitney v. Houghton, 125 Mass. 451, and cases cited.

Exceptions overruled.