In O'Leary v. Fash and in the case at bar the drivers were in no way furthering the object of their employment by assuming to take additional occupants into their respective vehicles. The expression in Kennedy v. R. L. Co. 224 Mass. 207, 209, "the defendant did not contract for or assent to its use by the plaintiff, who at most was only a licensee to whom it owed no duty except to refrain from wanton and reckless acts on the part of its servant in driving the car, which are not charged in the declaration or shown by the evidence," was not necessary to the decision, and, in so far as it tends to say that unauthorized guests in the position of the plaintiffs may recover for wanton or wilful conduct of the owner's agent in driving the automobile, is out of line with the trend of our decisions. The same is true of the statement in Gallagher v. O'Riorden, 208 Mass. 275, 276, "If the plaintiff [who was stealing a ride] had been on the caravan at the driver's express invitation or was riding with his consent, a different question would be presented."
Walker v. Fuller, 223 Mass. 566, 568. Kennedy v. R. L. Co. 224 Mass. 207, 209. Welch v. O'Leary, 287 Mass. 69.
Cyc. of Automobile Law. Blashfield, Vol. 1, page 955; Lowell vs. Williams, 170 N.Y. Sup. 596; Galloway vs. Perkins, 198 Ala. 658, 73 So. 956; Powell vs. Berry, 145 Ga. 696, 89 S.E. 753; Rogers vs. Price, 117 Kan. 181, 230 P. 1047. See also, Kennedy vs. R. L. Co., 112 N.E. 872, 224 Mass. 702; Spring vs. McKay, 53 Cal. Ap. 330; 200 P. 41; Harris vs. Reid, 117 S.E. 256, 30 Ga. Ap. 187; Flynn vs. Lewis, 231 Mass. 550, 121 N.E. 493; Graban vs. Pudwill, 45 N. Dak. 423, 178 N.W. 124; Munson vs. Rupker, 148 N.E. 169. Garner vs. Baker, 214 Ala. 385, 108 So. 38; Rush vs. McDonals, 214 Ala. 47, 106 So. 175; Dickenson vs. Conn. Co., 98 Conn. 87, 118 A. 518; Lasley vs. Crawford, 228 Ill. Ap. 590; Avery vs. Thompson, 117 Me. 120, 103 A. 4; Great Sou. Lbr. Co. vs. Hamilton, 137 Miss. 55, 101 So. 787; Royal Indemnity Co. vs. Platt Washburn Refining Co., 98 Misc. 631, 163 N.Y. Sup. 197; Bluck vs. Bradford Cleaning Dyeing Co., 186 N.Y. Sup. 823. The cause of action here is a pure tort. It having been determined that the owner of an automobile generally is liable for such a tort, we are asked to determine whether or not a married woman whose disabilities have not been removed is nevertheless liable for such a tort.
It was uncontroverted that the decedent was in the automobile on the invitation of the defendant's daughter to whom her father had given permission to use it for the purpose of going from Lawrence to Boston to buy a fur coat, and it was on the return journey that the accident happened. The defendant's responsibility rests on the authority conferred on his daughter to invite the decedent to accompany her. Kennedy v. R. L. Co. 224 Mass. 207-209. The jury of course had the right to believe the evidence of the administrator who testified that, in an interview after the accident, the defendant said that his daughter told him "they were going to a football game on Saturday and asked me if she could have a fur coat.
The defendant testified that he "was very intimate with Haas; don't know that I assisted him in any way only that I procured him employment and paid him for it; he has always been working for me when not at school or playing baseball." If the testimony of the defendant and Haas is to be believed the plaintiff has failed to prove that Haas was the servant of the defendant or was acting within the scope of his employment as a chauffeur at the time of the accident; but has established that the defendant had lent his automobile to Haas for a purpose in which the defendant had no interest. Herlihy v. Smith, 116 Mass. 265. Kennedy v. R. L. Co. 224 Mass. 207. In view, however, of the directed verdict, the plaintiffs have the right to have the testimony weighed in its aspect most favorable to their contention, and, to this end, have all unfavorable testimony disregarded.