220 Mass. 336 | Mass. | 1915
The material facts out of which these actions arise are these: The Autocar Company sold to the R. H. White Company two motor trucks, and agreed as a part of the contract to furnish with each for seven days without cost a chauffeur, who was a thorough mechanic and who would instruct the men of the R. H. White Company, and to “garage” the trucks, including the making of all ordinary repairs, for twelve months. The contract was in writing. During the seven day instruction period chauffeurs took the trucks from the garage of the Autocar Company and proceeded to the stable of the R. H. White Company where one of its men boarded each of the trucks, which thereafter were used in the delivery of goods of the R. H. White Company until the end of the day, when the men of the R. H. White Company left and the trucks were then driven from its stable to the garage of the Autocar Company by the chauffeurs. During the day the servants of the R. H. White Company gave directions as to the streets and houses to which the trucks should be driven in the delivery of goods, but the manner and speed of driving was wholly within the control of the chauffeurs, who were skilled mechanics in the general employ of the Autocar Company. On one of the journeys from the garage of the Autocar Company to the stable of the R. H. White Company during the seven day period, and when the chauffeurs employed and paid by the Autocar Company were alone on the trucks, the plaintiff Karl was injured, as has been settled by the Verdict of the jury, while he was in the exercise of due care, through the negligence of the driver of one of the trucks. The jury found specifically that the negligent chauffeur at the moment of the accident was a servant both of the R. H. White Company and of the Autocar Company. It is contended by each of the defendants that as to it this finding was unwarranted and that a verdict should have been directed in its favor.
On this point the. case is close to the line and there are none of our decisions precisely, in point, but Bowie v. Coffin Valve Co. 200 Mass. 571; S. C. 206 Mass. 305, Dutton v. Amesbury National Bank, 181 Mass.. 154, and Fleischner v. Durgin, 207 Mass. 435, are somewhat analogous arid like conclusions there were reached. Kellogg v. Church Charity Foundation, 203 N. Y. 191; S. C. Ann. Cas. 1913 A, 883 and note, 886, and Quarman v. Burnett, 6 M. & W. 499, go.further than is required to relieve the R. H. White Company from liability; In those two cases the defendants owned the- vehicles, which were being used in their business by a driver furnished under contract by a third person who alone had the authority to. hire, discharge and direct the driver as to the details of his duty of. driving, and they were exonerated from liability. Other cases on all fours with the cases against the R. H. White Company hold that the defendant is not liable. Neff v. Brandeis, 91 Neb. 11. Ouellette v. Superior Motor & Machine Works, 157 Wis. 531. See also Meyers v. Tri-State Automobile Co. 121 Minn. 68; Dalrymple v. Covey Motor Car Co. 66 Ore. 533.
It is plain from what has been said that the Autocar Company is liable. The injuries were the direct result of a negligent doing of its business by its servant hired by it and at the moment engaged in the performance of his duty as its employee. The actions against that defendant are well within numerous of our cases. They are in legal intendment almost exactly like Roach v. Hinchcliff, 214 Mass. 267. They are in principle indistinguishable from Driscoll v. Towle, 181 Mass. 416, Corliss v. Keown, 207 Mass. 149, Hunt v. New York, New Haven, & Hartford Railroad,
The Autocar Company furnished chauffeurs for the operation of the trucks to the R. H. White Company after the expiration of the seven day period. Bills for these were put in evideñcé: They covered the entire period beginning with the first day with a credit “less 7 days no charge.” They contained this clause, —' “ Cars operated by our employees only at owner’s risk.” The trial judge rightly ruled that this sentence, contained in bills rendered after the accident and not referred to in any way in the written contract between the two defendants, were no part of that agreement. In view of that ruling, it is not necessary to decide whether his interpretation of the sentence was correct or not.
A further question arises as to the right of the plaintiff, Katherine, to maintain an action for expenses incurred by her for the care of and attendance upon her minor son Karl growing out of his injuries and for the loss of his services suffered.by her during his nonage. The undisputed evidence showed that before the accident, she had been deserted by her husband, the father of the plaintiff Karl, and at the time of the trial he had been absent four years. His wife did not know where he was living nor even if he were alive. Adjudication had been entered against him on a charge of non-support of his family: thereafter for about six months he paid his wife a weekly allowance and then he disappeared. Since then the mother has supported the son entirely, who had no other means of maintenance. He had performed for his mother whatever service was within the range of his age and ability.
The duty rests upon the father to nurture and support his children in sickness and in health. Filial fidelity demands from children as a reciprocal obligation a degree of service for the father measured by age, ability and reasonable paternal requirement. The father is entitled to such service or the fruit of it if the child is employed by others. These respective duties and obligations have been recognized in the common law from an early day and rest upon deeply rooted natural sentiments. In the event of the death of the father a widowed mother who maintains a home and keeps a family of minor children together and supports
It has been the tendency of our decisions and the positive trend of our statutes to ameliorate the common law disabilities of married women. Nolin v. Pearson, 191 Mass. 283. Bunnell v. Hixon, 205 Mass. 468. Wing v. Deans, 214 Mass. 546. She now stands before the law almost, if not quite, on the same footing as the husband as fo all property and business rights, domestic .privileges and family immunities, though not charged with equal responsibilities. In case of discord or separation, she has the same
It follows that the right of the wife to maintain an action in a case like the present, even though the husband is living, may rest, also, upon the natural rights and obligations of a mother thrown upon her own resources and compelled by the wrongful act of the husband to assume the duties and discharge the obligations of both parents. This conclusion is supported by decisions of other courts. McGarr v. National & Providence Worsted Mills, 24 R. I. 447. Yost v. Grand Trunk Railway, 163 Mich. 564. Savannah, Florida & Western Railway v. Smith, 93 Ga. 742. Magnuson v. O’Dea, 75 Wash. 574. Nugent v. Powell, 4 Wyo. 173, 195.
There is nothing at variance with this conclusion in Gleason v. Roston, 144 Mass. 25, which held the pauper obligation as to support of minor children under such circumstances did not rest on the mother. This was before the enactment of St. 1898, c. 425, § 3, which made a mother responsible for such support. We do not mean to intimate that the legal obligation of the father is annulled.
The result is that the exceptions of the Autocar Company must be overruled. Those of the R. H. White Company must be sustained, and as verdicts ought to have been directed in its favor, and the cases seem to have been tried fully and fairly, judgment must be entered for it in accordance with St. 1909, c. 236.
So ordered.