Wiseman v. Rome

Carroll, J.

This action of tort to recover damages for the conscious suffering and death of John Wiseman, who was run into by an automobile truck owned by the defendant and operated by his son, Michael Rome, comes to this court on a report, the sole question being, was there “ sufficient evidence of agency of Michael Rome to jjustify submission to the jury of this action ” ? The action was tried with another by the same plaintiff, against Michael Rome, for damages growing out of the same accident.

There was evidence that the name “ Rome ” was on the truck; that a short time after the collision the defendant was present at the place of the accident and said to a police officer, who had stated he was going to put Michael under arrest, that “he owned the truck, that he wanted to take Michael home,” and “would make good anything he [Michael] had done”; that he “would give a thousand dollars to be allowed to take him home, and make everything all right”; that Michael “was his boy, ” and had a right to drive the car; and that he, the defendant, would assume all responsibility. There was evidence that Michael was asked “where he was bound for, ” and answered, “he was going on a job” and testimony tending to show that Michael was drunk and was put under arrest. The statements of the father that he assumed responsibility, that he would “make good” and pay money, may have been made with reference to securing the boy’s release. This, however, was a question for the jury. They could have found that the defendant assumed responsibility for the injury to the plaintiff’s intestate, and from this it could be inferred that Michael was his agent and engaged in his business at the time of the collision and that it resulted from his fault. From the defendant’s admission of responsibility it could have been found that he *507 admitted his liability for the agent’s acts, and that the acts of the agent were authorized. This evidence was not an offer of compromise, it was in the nature of an admission, and for this reason could be considered by the jury. Ellis v. Pierce, 172 Mass. 220 . Eldridge v. Barton, 232 Mass. 183, 186 . Mielke v. Dobrydnio, 244 Mass. 89, 92 . Dennison v. Swerdlove, post, 507.

As there was- evidence sufficient to warrant the court in submitting the case to the jury on the question of agency, according to the terms of the report judgment is to be entered for the plaintiff in the sum of $1,500.

So ordered.