Agency, Scope of employment. Parent and Child. Evidence, Presumptions and burden of proof.
Where at the trial of an action for damages resulting from negligence of a son in driving a motor vehicle of his father, the material evidence, if accepted by the jury as true, compelled the conclusion that, when the damage was done, the son was not acting as the agent or servant of the father and there was no affirmative evidence that he was so acting, and a verdict for the defendant was ordered, an exception of the plaintiff to such order should not be sustained merely because the jury might have been warranted in disbelieving a part or the whole of the evidence.
BRALEY, J.
The report of the presiding judge, who ordered a verdict for the defendant, shows evidence on which the jury would have been warranted in finding that, while the plaintiff, using due care, was driving his automobile in* the night time over a public way, it came into collision with the defendant's automobile through the negligence of the driver, the defendant's son, who, unaccompanied by his father, was operating the car. But, even if the defendant owned, and his son was using the car, the plaintiff, in order to recover, was obliged to introduce evidence from which the jury could find that the son acted as the father's servant. Trombley v. Stevens-Duryea Co. 206 Mass. 516. If the material evidence on this question as shown by the record was accepted by the jury as true, but one conclusion is possible, that the son without his father's knowledge was out on a "joy ride" or "frolic of his own." If, however, the evidence either wholly or partially could be disregarded, as the plaintiff's counsel urges in argument, there is no proof of liability. The defendant accordingly is entitled to judgment on the verdict.
So ordered.