Malley v. Hart

By the Court.

This is an action of tort to recover compensation for personal injuries sustained by the plaintiff through being struck on a public way by an automobile owned by the defendant. The question is whether there was any evidence that at the time of the injury the driver of the automobile was in the employ of the defendant and acting within the scope of his employment. There was no evidence that the driver was in the general service of the defendant or that he ever worked for the defendant except on odd jobs. There was evidence that on the day of the injury he was engaged to drive one or two women from the Dorchester district to the shopping district in Boston, to wait until the shopping was done and then drive her or them home; that he returned one, if not both, of the women home at twelve o’clock and then used the car on business of his own and not that of the defendant until the time the accident happened, not earlier than 12:45 p.m. If this evidence was believed, the defendant was not liable. If it was disbelieved, in whole or in part, the remaining evidence was insufficient to show that at the time of the accident the driver was acting within the scope of his employment by the defendant. McCarthy v. Timmins, 178 Mass. 378 . Porcino v. De Stefano, 243 Mass. 398, 400 . Lowe v. Antonelli, 245 Mass. 237 . Washburn v. R. F. Owens Co. 252 Mass. 47 . Phillips v. Gookin, 231 Mass. 250 .

No reversible error is shown in the exclusion of the question to the driver on his direct examination by the plaintiff because no offer of proof was made. Geary v. Stevenson, 169 Mass. 23, 31 . Cook v. Enterprise Transportation Co. 197 Mass. 7,10 . Kennon v. Shepard, 236 Mass. 57 .

Exceptions overruled.