Broitman v. Silver

Carroll, J. The plaintiff was injured while riding on a motor truck owned by the defendant and operated by her servant Weiss. The defendant carried on a bakery in Boston where she had “two bakeshops.” Her sons Oscar and Herbert as well as Weiss were employed by her. The plaintiff testified that he was standing on the sidewalk near the defendant’s store about two o’clock in the morning when Weiss, the driver of the truck, said to him, “Come along with me and give me a lift,” to which the plaintiff answered, “No, I have to go into work at six o’clock in the morning”; that Oscar Silver said to the plaintiff, “Go ahead. He will be back before six,” and directed Weiss to “Make it as snappy as you can”; that Oscar was present when Weiss asked the plaintiff “to give him a lift.” Mrs. Silver, the defendant, was not present when this talk took place. The first count of the declaration alleges that the plaintiff was injured “through the carelessness and gross negligence of” the defendant’s servant. The second count states that the plaintiff was “riding as a passenger for consideration” in the defendant’s automobile. There was evidence of the plaintiff’s care and of the negligence of the driver of the truck. The plaintiff had a verdict. The case is before us on the defendant’s exceptions to the refusal to direct a verdict in her favor. The record presents the question, Did Weiss, the driver of the truck, or Oscar Silver have authority to employ the plaintiff or invite him to ride on the truck as a guest or as a servant of the defendant? There was no evidence that Weiss was authorized to in [28] vite the plaintiff to be upon the truck or to employ him in the defendant’s service. Weiss was hired to drive the truck and to deliver merchandise; he had no further authority. In permitting the plaintiff to ride, Weiss was not acting within the real or apparent scope of his employment. Mrs. Silver did not expressly or impliedly assent to assume any duty toward the plaintiff. She did not ratify the acts of Weiss, and no emergency existed requiring additional assistance. O’Leary v. Fash, 245 Mass. 123, 127. Stone v. Commonwealth Coal Co. 259 Mass. 360. Butler v. Mechanics Iron Foundry Co. 259 Mass. 560, 563. Murphy v. Barry, 264 Mass. 557, 559. Oscar Silver had no express authority to invite or permit the plaintiff to go on the truck or to accompany Weiss as a guest or servant of the defendant. The evidence shows that Oscar was employed by his mother as a “checker ” or “shipper.” He carried the keys of “this store, and on the morning of the accident he opened the store for the driver”; after the driver .departed he closed the store. It did not appear that he had any authority to hire or discharge employees of the defendant. The plaintiff testified he had known Oscar for seventeen years, and had seen him in the bakery. When asked if he had heard Oscar give instructions to employees he answered, “A few times that I walked by I did; as many times as I passed by I seen employees talking to him . . . different times I walked by, he would ask some questions and he told him to deliver from one store to the other store.” There is nothing in this evidence taken most favorably for the plaintiff to show that Oscar was a general manager or was vested with any authority to permit the plaintiff to be upon the truck. The evidence relating to the instructions which it is contended he gave to other employees does not indicate that he was acting within the real or apparent scdpe of his authority in allowing the plaintiff to ride. There is nothing to show that the defendant expressly or impliedly assented to Oscar’s inviting people to ride on the truck or securing their assistance in her business. O’Leary v. Fash, supra. Stone v. Commonwealth Coal Co., supra, at [29] page 363. Butler v. Mechanics Iron Foundry Co., supra. See Powers v. Boston & Maine Railroad, 153 Mass. 188, 190; Bowler v. O’Connell, 162 Mass. 319, 320. The plaintiff relies on Lyttle v. Monto, 248 Mass. 340. In that case the driver, who was the owner of the truck, asked to be directed to the place he was going and invited the plaintiff to “Jump on and show me.” These facts distinguish the case from the case at bar. As the plaintiff cannot recover on either count of his declaration, the defendant’s motion for a directed verdict should have been granted. Exceptions sustained. Judgment to he entered for the defendant.