7. Operation of vehicle Negligent operation of truck, off highway, onto grass plot, and leaving it there with rear end extending into roadway without lights was operation within this section. Ward v. Falcione Bros., Inc. (App. Div. 1964) 29 Mass.App.Dec. 179.
8. Agent or servant, generally Despite Massachusetts statutory presumption of agency relationship between vehicle driver and registered owner, owner was entitled to judgment as a matter of law in diversity action arising out of accident involving vehicle leased by owner to employee as job benefit; uncontroverted evidence showed that vehicle was used by employee for his personal use, and lease specifically provided that it did not create relationship of agency. Richardson v. Matthews, D.Mass.1995, 882 F.Supp. 6.
Gross negligence of operator of leased automobile was imputable to owner of automobile only if at time of the automobile accident the relationship of the owner and operator was that of master and servant and such relationship existed only if the owner had a right to control the result to be accomplished by operator and the means employed to accomplish it. Cheek v. Econo‑Car Rental System of Boston, Inc. (1985) 473 N.E.2d 659, 393 Mass. 660.
The contributory negligence of wife driving husband's automobile would not be imputed to husband where wife was not driving as husband's agent. Feaver v. Railway Exp. Agency (1949) 85 N.E.2d 322, 324 Mass. 165.
Test of whether owner while driving automobile is acting as servant of another is whether he is in control so that he can stop or continue and determine way in which it shall be driven. Reardon v. Coleman Bros. (1931) 178 N.E. 638, 277 Mass. 319.
One using his own automobile for his personal convenience going from one place of work to another was not "servant" when driving, so as to make employer responsible for conduct. Reardon v. Coleman Bros. (1931) 178 N.E. 638, 277 Mass. 319.
That automobile driver, as accommodation in going on his own business in his own way to new place of work, took other employees, tools and materials of employer, did not render employer liable for injuries resulting from collision. Reardon v. Coleman Bros. (1931) 178 N.E. 638, 277 Mass. 319.
9. Bailment Although negligence of bailee is not imputed to bailor of motor vehicle, in order to recover for damages to his vehicle caused by collision with a vehicle of a third person, bailor must prove that such person was negligent and that his negligence contributed to causing collision. Lourie v. Town Taxi, Inc. (App. Div. 1961) 24 Mass.App.Dec. 41.
10. Identity and ownership of vehicles, generally To establish the ownership by defendant of an automobile which caused negligent injury on the highway, the certificate of registration bearing the same number as the car was admissible in evidence, since, till rebutted, the presumption was that the owner had complied with St.1903, c. 473, §§ 1, 3, which required such registration. Trombley v. Stevens‑Duryea Co. (1910) 92 N.E. 764, 206 Mass. 516.
11. Imputed negligence Generally, misconduct cannot be imputed from one family member to another. Feltch v. General Rental Co. (1981) 421 N.E.2d 67, 383 Mass. 603.
The negligence of the operator of an automobile in which the owner is traveling is chargeable to the latter, in an action against a third person by the owner, if at the time of injury the owner had the right to control the operation of his automobile. Menzigian v. La Riviere (1956) 137 N.E.2d 925, 334 Mass. 610.
Control is incident of ownership, and continues in owner‑occupant of automobile in absence of evidence tending to show that it has been transferred by him to operator. Menzigian v. La Riviere (1956) 137 N.E.2d 925, 334 Mass. 610.
12. Liability of persons other than owners In action by pedestrian against company operating shipyard for injuries sustained by pedestrian when struck by a fire truck, which was owned by the United States Navy and which was used in company's fire department, pedestrian could not recover on count charging company with negligently permitting an unfit person to operate a motor vehicle on a public way, where there was no showing that company was negligent in not preventing drunken driver from taking the truck which had been left unlocked with its motor running. Ouellette v. Bethlehem‑Hingham Shipyard (1947) 73 N.E.2d 592, 321 Mass. 390.
Alleged fact that guards at gate of shipyard violated shipyard company's regulations did not render company liable for injuries sustained by a pedestrian who was struck by truck from company's fire department, which had been taken outside gates of shipyard without company's permission by an intoxicated employee, since pedestrian did not belong to the class of persons in reference to whose safety the regulations were adopted. Ouellette v. Bethlehem‑Hingham Shipyard (1947) 73 N.E.2d 592, 321 Mass. 390.
One occupying automobile as guest of owner is not liable for injuries sustained by another due to negligence of driver, if occupant has no control over driver. Hutchings v. Vacca (1916) 112 N.E. 652, 224 Mass. 269.
Car rental company was not legally responsible for conduct of driver of automobile by reason of presumption set forth in this section where operator of the vehicle was a renter of the car and not an agent and employee of the car rental company. Cheek v. Econo‑Car Rental System of Boston (App. Div. 1984) 1984 Mass.App.Div. 63.
13. Owner's liability for acts of third persons‑‑In general After lessor as registered owner of vehicle involved in accident defaulted by failing to file answer and after jury returned verdict in favor of vehicle's driver, issue of damages to be assessed against lessor should not have been submitted to jury; complaint made clear that any liability of lessor was derivative rather than joint and several, and finding that driver was not negligent vitiated any basis for judgment against lessor. Gangl v. Ford Motor Credit Co. (1994) 641 N.E.2d 709, 37 Mass.App.Ct. 561, review denied 646 N.E.2d 409, 419 Mass. 1104.
Liability of registered owner of vehicle is not joint and several, but derivative. Gangl v. Ford Motor Credit Co. (1994) 641 N.E.2d 709, 37 Mass.App.Ct. 561, review denied 646 N.E.2d 409, 419 Mass. 1104.
Where, though named insured's son's use of car at time of accident went beyond that needed to carry out father's request to convey son's brother to garage, son's use of car to take friends elsewhere was within scope of general permission to use car for son's business and pleasure and father had not limited such permission by telling son to return home after dropping brother off, son was an "insured" within combination motor vehicle policy providing that an insured was a person using motor vehicle with permission of named insured if actual operation of vehicle was within scope of such permission. Muzichuk v. Liberty Mut. Ins. Co. (1974) 311 N.E.2d 558, 2 Mass.App.Ct. 266.
Operation of wife's vehicle by husband, when he was unqualified to do so, could be found a negligent act. Bates v. Callahan (1964) 198 N.E.2d 644, 347 Mass. 772.
Owner of automobile, which struck pedestrian while automobile was being tested by employee of garage, was not entitled to exoneration from liability arising from tort action against employee, garage owner and automobile owner, where liability on part of anyone had not been established and there was no certainty that it would be. Benway v. Porter Chevrolet, Inc. (1961) 174 N.E.2d 25, 342 Mass. 524.
Registered owner was not liable to third persons for negligent operation of automobile by another under this section placing on registered owner burden of showing absence of responsibility for driver's negligence where jury found that driver was not acting within scope of his employment with or any permission from owner at time of collision. Fitiles v. Umlah (1948) 77 N.E.2d 212, 322 Mass. 325.
If automobile which struck pedestrian was stolen, the automobile owner would not be liable for pedestrian's injuries. Pochi v. Brett (1946) 65 N.E.2d 195, 319 Mass. 197.
So far as automobile owner was concerned, guests of driver, who had no authority to extend invitation to anyone to ride in automobile, stood no higher than trespassers and the only duty owed to them was to refrain from wanton or willful conduct by owner's employee acting in the course of his employment. Little v. Levison (1944) 55 N.E.2d 17, 316 Mass. 159.
Evidence authorized finding that plaintiff and driver did not violate right of way statute, and that driver of defendant's automobile should have seen approach of plaintiff's automobile in time to have averted collision, and that accident was caused solely by negligence of driver of defendant's automobile. Morton v. Dobson (1940) 30 N.E.2d 231, 307 Mass. 394.
Owner of automobile who was not driver or passenger of automobile at time of accident was not liable for negligence or gross negligence of driver causing injury to passenger riding in automobile without her invitation or that of some person authorized by her to give such invitation. Welch v. O'Leary (1934) 191 N.E. 377, 287 Mass. 69.
G.L.1921, c. 231, § 85A which made registered owner of automobile prima facie legally responsible for driver's conduct did not impose liability for negligence of unauthorized operator. Wilson v. Grace (1930) 173 N.E. 524, 273 Mass. 146.
At common law, mere ownership of motor vehicle, without evidence that it is being driven by servant of owner, is not enough to fasten on owner liability for its negligent operation, though such rule is subject to change by statute. In re Opinion of the Justices (1925) 147 N.E. 681, 251 Mass. 569.
Owner of automobile, merely by virtue of his ownership, is not liable for injuries inflicted by the car when driven by another person, not his servant. Phillips v. Gookin (1918) 120 N.E. 691, 231 Mass. 250.
An automobile owner was not answerable for personal injuries inflicted by his car when driven by a person to whom he had let its use, and who was not and never had been his servant. Phillips v. Gookin (1918) 120 N.E. 691, 231 Mass. 250.
14. ‑‑‑‑ Employees, owner's liability for acts of third persons Conduct of automobile owner in allowing his employee, who unbeknown to owner was licensed to operate trucks only, to drive owner's automobile, did not constitute "wanton or willful conduct" on part of owner so as to make owner liable for injuries sustained by driver's guests while automobile was operated by employee. Little v. Levison (1944) 55 N.E.2d 17, 316 Mass. 159.
Where defendant's automobile was loaned to his employee, who was using it for his own pleasure, defendant was not liable for employee's negligence. De Simone v. Barr (1925) 149 N.E. 624, 254 Mass. 79.
If employee used master's automobile in the master's business, but without authority or consent, master was not liable for negligent driving. McDonough v. Vozzela (1924) 142 N.E. 831, 247 Mass. 552.
15. ‑‑‑‑ Parent and child, owner's liability for acts of third persons Passenger injured while riding in automobile operated by 16‑year‑old motorist, who had only learner's permit, but who had been left at home by her mother with key to automobile, failed to show that agency relationship existed between motorist and her mother, or that mother had granted motorist actual or apparent authority to invite passenger for a ride, as required to hold mother vicariously liable for injuries sustained by passenger. DeLuca v. Cleary (1999) 710 N.E.2d 1027, 47 Mass.App.Ct. 50, review denied 714 N.E.2d 825, 430 Mass. 1104.
Evidence that father owning truck told son, after son had finished driving truck for father's coal and ice business, to take mother in the truck to get the family groceries, warranted finding that son was driving truck on father's business when truck struck plaintiff, so as to make father responsible for conduct of son in driving truck. Bartley v. Almeida (1947) 76 N.E.2d 22, 322 Mass. 104.
In action for death of plaintiff's intestate in automobile accident, this section making registered owner of automobile prima facie legally responsible for driver's conduct did not make evidence that automobile involved in accident was registered in name of defendant as owner prima facie evidence that defendant's son, who was operating automobile at time of accident, was authorized to invite intestate to ride in automobile. Dineasoff v. Casey (1940) 29 N.E.2d 25, 306 Mass. 555.
Defendant was not liable for death of plaintiff's intestate who was riding in automobile owned by and registered in defendant's name and being operated by defendant's son when automobile struck a tree, where there was no evidence to warrant finding that intestate was riding in automobile at time of accident at express or implied invitation of defendant or of any person authorized by defendant to give such invitation. Dineasoff v. Casey (1940) 29 N.E.2d 25, 306 Mass. 555.
Owner's permission or knowledge of use of automobile by daughter did not create relationship of master and servant or of agency. Kindell v. Ayles (1928) 160 N.E. 818, 263 Mass. 244.
Agency of child, driving parent's automobile, is not established from fact of relationship. Field v. Evans (1928) 159 N.E. 751, 262 Mass. 315.
Mother, giving daughter permission to use automobile for pleasure of sister and guest, was not liable for negligent operation. Field v. Evans (1928) 159 N.E. 751, 262 Mass. 315.
Father permitting minor son to operate automobile is not liable for son's negligence, unless son was engaged in father's business as agent. Dennis v. Glynn (1928) 159 N.E. 516, 262 Mass. 233.
Automobile owner was not responsible for negligent acts of his son in driving the car, unless the son at the time was his agent or servant, engaged in the performance of his business, or unless the act was subsequently ratified or adopted. Haskell v. Albiani (1923) 139 N.E. 516, 245 Mass. 233.
16. ‑‑‑‑ Acts permitted by agent or servant, generally, owner's liability for acts of third persons
No authority to invite guest to ride in automobile can be implied from agency to operate automobile. Foley v. John H. Bates, Inc. (1936) 4 N.E.2d 349, 295 Mass. 557.
17. ‑‑‑‑ Purchasers or sales agents, owner's liability for acts of third persons
In action for personal injuries sustained by passengers in automobile which had been borrowed from defendant automobile dealer by an individual defendant for purpose of trying automobile out with thought of possible purchase or its sale through him to some third person, and which, while being driven by third defendant, collided with telephone pole, evidence of any grant of authority by dealer to carry passengers was insufficient to take case against dealer to jury. Pistorio v. Williams Buick, Inc. (1960) 167 N.E.2d 850, 341 Mass. 155.
Administratrix was not entitled to recover from automobile dealer for death of intestate in automobile accident under this section making automobile owner's registration prima facie evidence of responsibility for driver's acts, assuming that statute was applicable, where accident occurred while automobile was being tried out by prospective customer with whom intestate rode without consent of dealer. Foley v. John H. Bates, Inc. (1936) 4 N.E.2d 349, 295 Mass. 557.
Prospective purchaser of automobile who was trying out automobile was not acting as servant or agent of automobile dealer in giving ride to girl who was stranger to agreement between prospective purchaser and dealer. Foley v. John H. Bates, Inc. (1936) 4 N.E.2d 349, 295 Mass. 557.
Presence of guest of prospective purchaser in dealer's automobile without dealer's consent or knowledge created no relation between guest and dealer except perhaps that of trespasser, and dealer owed guest no duty except that due to one in his automobile without right. Foley v. John H. Bates, Inc. (1936) 4 N.E.2d 349, 295 Mass. 557.
Automobile dealer was not liable for death resulting from negligence or gross negligence of prospective purchaser operating dealer's automobile to person riding therein without dealer's invitation, express or implied, or that of some person authorized by dealer to give such invitation. Foley v. John H. Bates, Inc. (1936) 4 N.E.2d 349, 295 Mass. 557.
Automobile dealer lending automobile to prospective purchaser to try out does not assume same liability toward strangers to transaction picked up on street as passengers by prospective purchaser as does one engaged in business of letting automobiles for hire toward invitee of person hiring such automobile in ordinary course of business. Foley v. John H. Bates, Inc. (1936) 4 N.E.2d 349, 295 Mass. 557.
18. Passengers, guests or occupants This section does not make registration evidence that owner of truck authorized driver employed by owner to invite child to ride on truck. Falden v. Crook (1961) 172 N.E.2d 686, 342 Mass. 173.
Owner by entrusting automobile to another to drive did not thereby empower driver to invite guests to ride in automobile. Little v. Levison (1944) 55 N.E.2d 17, 316 Mass. 159.
In action by administratrix against automobile dealer for death of guest who without dealer's knowledge or consent was riding with prospective purchaser of dealer's automobile at time of accident, this section making automobile owner's registration prima facie evidence of responsibility for driver's acts did not afford prima facie evidence that prospective purchaser was empowered to invite others to ride with him. Foley v. John H. Bates, Inc. (1936) 4 N.E.2d 349, 295 Mass. 557.
Where there was no evidence that driver of automobile had authority from registered owner to invite deceased to ride with him, that this section made registration of automobile prima facie evidence that registered owner was legally responsible for conduct of driver did not render owner liable for injuries to passenger of automobile, since statute did not make registered ownership prima facie evidence that driver had authority to invite passenger to ride in automobile. Welch v. O'Leary (1934) 191 N.E. 377, 287 Mass. 69.
19. Report of accident Defendant's report of accident to registry of motor vehicles, giving her name as owner and registration number, was sufficient to permit jury to find that automobile bearing that number was one registered in defendant's name as owner, and it was not necessary that a certified copy of registration be offered in evidence to render applicable this section creating prima facie evidence that automobile was being operated under control of person for whose conduct defendant was legally responsible. Pochi v. Brett (1946) 65 N.E.2d 195, 319 Mass. 197.
20. Registration Action of automobile owner and his agent in allowing unregistered automobile to remain on public way, or to remain in private parking lot with keys over sun visor, was not proximate cause of injuries sustained by pedestrian, who while crossing street in exercise of due care, was struck by automobile which was negligently driven by thief who had stolen automobile, but conduct of thief was intervening cause which owner and agent were not bound to anticipate and guard against, and hence owner and agent were not liable for such injuries either on theory of negligence or on theory of nuisance. Galbraith v. Levin (1948) 81 N.E.2d 560, 323 Mass. 255.
Pedestrian who was injured by truck owned by United States Navy and used in defendant company's fire department at shipyard, could not recover on count charging operation by an agent of an automobile not properly registered, where there was no evidence that driver who took truck without permission was company's agent, and no statute requiring that an automobile used in the service of the Navy should be registered. Ouellette v. Bethlehem‑Hingham Shipyard (1947) 73 N.E.2d 592, 321 Mass. 390.
Proof that defendant owned automobile which struck plaintiff, without showing that automobile was registered in defendant's name, was not sufficient to impose liability upon defendant even if automobile was being operated negligently, in absence of further showing that at time of accident the automobile was being operated or was under control of defendant or of a person for whose conduct defendant was legally responsible. Bagin v. Craven (1944) 57 N.E.2d 563, 316 Mass. 758.
Where automobile dealer has a statutory dealer's certificate and places dealer's license plates upon automobile owned in fact by such dealer, the automobile becomes "registered in his name as owner" within terms of this section making such registration prima facie evidence in death action that automobile was driven by one for whose conduct he was legally responsible. Legarry v. Finn Motor Sales (1939) 23 N.E.2d 1011, 304 Mass. 446.
Statutory prima facie evidence rule that registered owner of automobile is responsible for driver's conduct is applicable only when registration is proved. Karpowicz v. Manasas (1931) 176 N.E. 497, 275 Mass. 413.
Mere ownership of motor vehicle operated on public way does not create presumption under this section that owner was in control of operator's conduct in absence of registration of vehicle in owner's name. MacDonald v. Souther (App. Div. 1958) 15 Mass.App.Dec. 81.
Inasmuch as there is no evidence that the truck involved in an accident was registered to the defendant corporation, plaintiff cannot take advantage of this section. Poulin v. H. A. Tobey Lumber Corp. (App. Div. 1957) 13 Mass.App.Dec. 113.
21. Parties While this section establishes a prima facie case of responsibility of registered owner of automobile for driver, irrespective of their domiciles or of the state of registration, it does not make the driver an indispensable party even if they could be regarded as joint tort‑feasors. Munro v. Doherr, D.C.Mass.1957, 156 F.Supp. 723.
That plaintiff proceeded to trial after defendant automobile owner pleaded nonresponsibility for operator's conduct did not preclude court, after verdict for defendant, from permitting amendment by substituting defendant's son as defendant. Shapiro v. McCarthy (1932) 181 N.E. 842, 279 Mass. 425.
22. Affirmative defenses Where St.1928, c. 317, § 1 making registered owner of automobile prima facie responsible for driver's conduct applied, absence of responsibility for acts of driver was affirmative defense. Karpowicz v. Manasas (1931) 176 N.E. 497, 275 Mass. 413.
Where plaintiff established prima facie case by proving defendant was registered owner of automobile at time of accident, absence of legal responsibility for driver's conduct becomes affirmative defense. Wilson v. Grace (1930) 173 N.E. 524, 273 Mass. 146.
The effect of G.L.1921, c. 231, § 85A was that, if the defendant denied responsibility for the acts of his employee on the ground that at the time of the accident or collision the latter was not engaged in the employer's business, it was an affirmative defense which was to be set up in the answer and proved by the defendant. The statute was analogous in this respect to G.L. c. 231, § 85 commonly known as the due care statute. Smith v. Freedman (1929) 167 N.E. 335, 268 Mass. 38.
23. Variance between pleading and proof Where pedestrian alleged that he was injured by an automobile which was negligently operated by and under control of a person for whose conduct defendant owner was legally responsible, but pedestrian relied on this section creating prima facie evidence that automobile was being operated by a person for whose conduct registered owner was legally responsible, there was no variance between the declaration and the evidence. Pochi v. Brett (1946) 65 N.E.2d 195, 319 Mass. 197.
In action for injuries by automobile, variance between declaration that defendant was driving and proof that relative was driving was immaterial. Greenburg v. Gorvine (1932) 181 N.E. 128, 279 Mass. 339.
An allegation that the defendant was the owner of the motor vehicle involved in an accident and that its operator was, under this section, a person for whose negligent operation the defendant was responsible, fails in its proof when there is no evidence of the ownership or registration of the vehicle. Dreezer v. Rilley (App. Div. 1972) 49 Mass.App.Dec. 182.