259 Mass. 360 | Mass. | 1927
The plaintiffs, while crossing Beacon Street in Boston, were struck and injured by a motor truck. They
This would justify a finding that he was in the general employ of the defendant, and, at the moment of the injury, was busied in his employer’s behalf. The important question upon the plaintiffs’ bill of exceptions is, whether he was so acting within the scope of his employment that the doctrine of respondeat superior must be applied and the defendant be held hable for his negligence.
The trial judge, pursuant to leave reserved before submitting the cases to the jury, G. L. c. 231, § 120, set aside verdicts for the plaintiffs and entered verdicts for the' defendant. The plaintiffs contend that this was error. They rely chiefly upon the cases of McDonough v. Vozzela,
It is not enough, in order to establish liability, to show that the master has an interest in what is being done. It must also be made to appear that the servant whose act is in question has authority from the master to perform the class of service to which the act belongs. If the act is within the class, the master is bound although the servant is forbidden to perform the particular act. Powell v. Deveney, 3 Cush. 300. Barden v. Felch, 109 Mass. 154.
Driving motor trucks upon the roads was not within the class of work for which McDonnell was hired. His general employment did not confer the authority, and no special authority is shown to have been given. The distinction appears in the decision of Blackburn, J., in Limpus v. London General Omnibus Co. 1 H. & C. 526, 542, where the master was held for conduct of the servant in driving although contrary to his orders; yet the judge suggests that he would not be liable if a footman had assumed to drive in the coachman’s place. As stated in Fleischner v. Durgin, 207 Mass. 435, 436, “The master is liable for the act of a servant in charge of his vehicle when the latter is acting in the main with the master’s express or implied authority upon his business and in the course of the employment for the purpose of doing the work for which he is engaged.”
The recent decision in Champion v. Shaw, 258 Mass. 9,
The plaintiffs contend that McDonnell’s action in taking and using the truck could be found to have been ratified by the defendant, and so a liability be made out within the doctrine of Dempsey v. Chambers, 154 Mass. 330. In that case glass was broken in the course of delivery of coal by a teamster who had not been employed by the defendant but who had undertaken to deliver coal for which the defendant had collected payment. The court held that thereby the defendant had ratified the delivery and was responsible for what one thus made its servant had done. The negligent act was incidental to the class of work of the servant. In the case before us there is nothing to show that any one contemplated that giving the message to McDonnell’s friend and neighbor involved the use of a motor vehicle. The thing to' be done did not call upon him to go outside the ordinary class of his work. There was no evidence that wood received from the friend as a consequence of the message was delivered to the defendant.
There was evidence that after learning what had taken place, the defendant procured a lawyer for McDonnell and paid a fine imposed for his breach of the law. McDonnell and all who testified asserted that this payment was a loan. The judge instructed the jury to disregard the evidence if satisfied that the transaction was a loan. He should have gone further and have excluded the evidence. It was res inter alios and had no legitimate probative effect.
In Lowe v. Antonelli, 245 Mass. 237, evidence of giving bail and of payment of fine by an alleged master, was
Without deciding that such evidence never is admissible on liability, it certainly ought not to be admitted where no more appears. There are so many other good reasons for such action that it ought not to be taken as an admission of liability or of ratification.
The judge was right in causing verdicts to be entered for the defendant under the leave reserved. The plaintiffs’ exceptions are, therefore, overruled. This renders an examination of the defendant’s exceptions unnecessary; as the defendant was not harmed, its exceptions also are overruled.
Exceptions overruled.