262 Mass. 310 | Mass. | 1928
These cases are actions of tort to recover damages to an automobile owned by the plaintiff Edwin Welch and for personal injuries suffered by the plaintiff Ruth C. Welch on November 21,1924, alleged to have been caused
The traffic manager and clerk of the corporation testified that the defendant’s place of business was located in Boston, from which cabs were ordered by customers, and that the pay roll which he had with him did not show the number of hours the driver worked on November 21, 1924, and that a driver by the name of Devoe whose first name did not appear on the pay roll received a pay check on that date. But there were no records which would indicate the hours that he worked or his full name. The plaintiff Edwin A. Welch testified that there was no one in the cab when the accident occurred except the driver, who wore the regulation uniform and a cap with white and black checker marks on it, and who gave his name as “Mr. Devoe.” It also could be found that the driver had a license number and that the name “Mr. Devoe” appeared thereon. But, even if the foregoing facts are viewed in the light most favorable to the plaintiffs, there is ho evidence that any passenger was in the car or that the driver was on his way for a passenger in response to a call for service, or was returning to the office after the completion of such service.
The burden was on the plaintiff to show that at the time of the injury Devoe was not only the defendant’s servant, but was acting within the scope of his employment of driving passengers for hire as directed by the defendant. It was a matter of speculation and conjecture whether the driver was about the defendant’s business, and, the verdicts for the defendant having been ordered rightly, the entry in each case must be
Judgment far the defendant on the verdict.
