266 Mass. 531 | Mass. | 1929
This is an action of tort, against three defendants for personal injuries caused by a collision of automobiles. It was tried before a judge of the Superior Court and a jury. The evidence tended to show that the automobile in which the plaintiff was riding upon Albany Street, Boston, was struck and upset by an automobile which was owned by the defendant Derzavitcz and was being driven by the defendant Louis Goldman, a minor son of the defendant Harris Goldman, and that injuries to the plaintiff resulted. There was evidence of the negligence of the defendant Louis Goldman, of the due care of the plaintiff and of the due care of the operator of the car in which the plaintiff was riding, sufficient to warrant the submission of the case against Louis Goldman to the jury. At the close of the plaintiff's case the defendant Harris Goldman made a motion that the plaintiff be ordered to elect one of the three defendants against whom the case should proceed, "that is, as to whether the plaintiff would proceed against the alleged servant or agent, Louis Goldman, or against either one of the alleged other defendants as principals.” The judge ruled "that the plaintiff should elect as to whether she would proceed against Louis Goldman on the one hand, or against the two remaining defendants on.the other hand. . . .
The plaintiff introduced evidence tending to show the following facts: The defendant Louis Goldman was a minor son and the oldest child of the defendant Harris Goldman, who lived with his father as one of the family of six. He was a licensed chauffeur and had driven his father’s cars and. trucks for years. The father was in the express and garage business. The defendant Derzavitcz kept his automobile in the father’s garage. A brother of the defendant Louis Goldman, twelve years of age, was injured in the garage at some time between 8:30 and 10:15 p.m. on May 19, 1925, and was taken to the Boston City Hospital, to which hospital he was admitted at 10:20 p.m. The collision took place on Albany Street, Boston, between the hospital and the garage of the defendant Harris Goldman at about 10:30 p.m. of the day on which the boy was injured in the garage. The police officer who investigated the collision testified as a witness for the plaintiff to a conversation which he had with the defendant Louis Goldman on the morning following the collision in the presence of the defendant Harris Goldman as to who drove the automobile which caused the injury to the plaintiff. His testimony was that the defendant Louis Goldman then said to him "that his license had been revoked. . . . And his father had sent him to the hospital either to take the kid or bring his mother back, one of the two, I don’t recall just . . . which statement he said. . . . That he sent his son to the hospital to bring the baby back, I think, who was hurt in the elevator . . . Louis said; and I said to Louis in the presence of his father, ‘Who was driving the car.’ He said, ‘I was.’ And then it was different conversation; I
The testimony as to the conversation between the police officer and the defendant Louis Goldman, carried on in the presence of the defendant Harris Goldman, was admissible against the latter, in spite of the fact that it does not appear in express terms that he made no reply, as an admission by silence of the truth of the statements made by the defendant Louis Goldman. It was a reasonable inference from the testimony that the defendant Harris Goldman remained silent. The whole of the conversation purports to have been given. See Proctor v. Old Colony Railroad, 154 Mass. 251, 254. In other respects as well the evidence was competent. Commonwealth v. Brailey, 134 Mass. 527, 530. Warner v. Fuller, 245 Mass. 520, 528. Kenyon v. Vogel, 250 Mass. 341. Commonwealth v.Helfman, 258 Mass. 410. This testimony, if believed, considered in connection with other testimony in the case including the testimony as to the place of the collision with reference to the hospital and the garage, and the time of it with reference to the time of the injury of the twelve-year-old
The plaintiff rightly was ordered to elect as between the defendant Louis Goldman, the alleged agent or servant, and the defendants Derzavitcz and Harris Goldman, the alleged principals. The defendant Derzavitcz was not liable to the plaintiff unless the defendant Louis Goldman was his agent or servant (Phillips v. Gookin, 251 Mass. 250) and the defendant Harris Goldman was not so liable unless the defendant Louis Goldman was his agent or servant. Haskell v. Albiani, 245 Mass. 233. Whatever may be the law elsewhere (see cases discussed in Warax v. Cincinnati, N. O. & T. P. Railway, 72 Fed. Rep. 637, and cases collected in Mechem on Agency, 2d ed. § 2011), it must be considered as settled here that in such a suit for negligence, when the negligence occurred in the absence of the principal or master and without his direction or subsequent adoption, the principal and agent or master and servant cannot be sued jointly. Parsons v. Winchell, 5 Cush. 592. Mulchey v. Methodist Religious Society, 125 Mass. 487. See Feneff v. Boston & Maine Railroad, 196 Mass. 575, 581. There was no evidence that the relation of principal and agent or master and servant existed between the defendant Derzavitcz and the defendant Harris Goldman, so the rule above stated does not apply to' them. Whether on the other hand there was any affirmative evidence of such direct or indirect cooperation between them as would warrant a finding of joint liability (see Feneff v. Boston & Maine Railroad, supra, Dickey v. Willis, 215 Mass. 292; see also Stone v. Dickinson, 5 Allen, 29) need not be considered now for there has been a verdict for the de
Exceptions overruled.