260 Mass. 417 | Mass. | 1927
The plaintiff was hastening across Waverly Street in Framingham in order to board an electric street car bound for Ashland when he was struck and injured by the defendant’s automobile coming from the direction of Ashland and driven by one Pizzeri. After a verdict for the plaintiff, the action is before us upon the defendant’s exceptions.
The essential questions for decision are, whether there was evidence to be submitted to the jury upon the issues of contributory negligence and of liability of the defendant for acts of Pizzeri; whether certain requests for instructions to the jury were properly denied; and whether certain portions of the charge state the law accurately.
The defendant moved that a verdict be directed in its favor. If that motion should have been granted, it becomes unnecessary to consider other questions raised by the exceptions.
Although it owned the automobile, a runabout, and although Pizzeri was in its employ, the defendant was not liable unless, when the accident occurred, the runabout was being used in and Pizzeri was acting within the scope of his employment. Stone v. Commonwealth Coal Co. 259 Mass. 360.
Even if we assume that in going to Benjamin’s house he was engaged in the employer’s business of delivering purchased goods to the buyer and acting properly in so doing, his detour to his home is unjustified.
There was uncontradicted testimony that the motor vehicles of the defendant bore a plate announcing that only Armour employees in the regular course of their business were permitted to ride in them, that each chauffeur was furnished a book of rules which forbade him to carry passengers or to use the car for personal business or pleasure, and that no one in authority had excused them from living up to these rules. The plaintiff’s contention is that on the evidence, in regard to practices of Pizzeri referred to, the jury could find that the rules had become a dead letter.
If, however, we disregard evidence which came from the defendant on the ground that the jury might not believe it, we remain unable to hold that there was evidence to justify finding that Pizzeri was acting within the scope of his employment or engaged in his master’s business. All that was shown, if the testimony in regard to his practices were believed, was, that he had done these things; not that he was authorized to do them. There was no ostensible authority to use the defendant’s runabout after hours and for his own pleasure. There was nothing in the runabout to indicate that it was being used in the defendant’s business, as there was in Breen v. Dedham Water Co. 241 Mass. 217. The case is controlled in principle by Seaboyer v. Director General of Railroads, 244 Mass. 122.
The defendant’s motion should have been granted. The exceptions to rulings upon the admission of evidence were waived. It follows that the exceptions must be sustained. Pursuant to G. L. c. 231, § 122, judgment should enter for the defendant.
So ordered.