Opinion
No. 3233.
Decided June 3, 1941.
The bailor of a motor vehicle is not liable for the negligence of the bailee in its operation.
If subsequent to the termination of the bailment the owner resumes possession of the car, permitting the former bailee to drive it but not yielding to him the sole right of control, the owner is responsible for his negligent driving.
CASE, for the negligent driving of the defendant's car, resulting in a collision in Massachusetts with the plaintiff's car, for which damages are sought. Trial by the court without a jury. The defendant seasonably moved for a nonsuit and excepted to the denial of his motion. The court returned a verdict for the plaintiff, and the defendant moved to set it aside on the ground that there was no evidence on which it could be found that one Woodman, who was driving the defendant's car at the time of the collision, was acting as the defendant's agent. To the denial of this motion the defendant excepted. A bill of exceptions was allowed by Johnston, J. The facts appear in the opinion.
J. Leonard Sweeney and Edward J. Lampron (Mr. Lampron orally), for the plaintiff.
Hamblett Hamblett and Robert F. Griffith (Mr. Griffith orally), for the defendant.
At the time of the accident the defendant, Woodman and four others were returning to their homes in Nashua from Pepperell, Massachusetts, where they had been bowling. The defendant sat on the right end of the front seat, Woodman at the wheel, and one Drake between them. The negligence must be taken to have been wholly that of Woodman, and if the defendant is held for it, it must be upon some theory of vicarious liability.
Before the party started for Pepperell, the defendant loaned his car to Woodman for the purpose of picking up two of the bowlers. Woodman returned and got the defendant, who thereafter occupied the car while Woodman drove it. As far as appears, the arrangement between Page and Woodman was originally a bailment of the car, for whose negligent operation the owner would not be liable. Cain v. Wickens, 81 N.H. 99. But it could be found that the bailment contemplated was only for the purpose of picking up the two men and bringing them to the point where the defendant was.
The relationship thereafter depends upon the evidence of what happened at the time the defendant entered the car, and after. The defendant testified thus: "He [Woodman] came back and he said `Jump in.' I said `O. K.' Q. Instead of your driving the automobile, you allowed Mr. Woodman to drive the car for you? A. Yes; he did. Q. You allowed him to drive it, and told him he could drive it? A. Yes." Arrived at Pepperell he told Woodman to lock the car, "and when we got ready to come to Nashua, he opened the car, and still drove the car . . . . Q. You gave him permission to drive your car? A. He wanted to drive it, and I let him. Q. You gave him permission to drive the car? A. Yes."
From this evidence it could be inferred that the defendant furnished the car for the trip to Pepperell and that the trip was his own undertaking; that he consented that Woodman should drive in his behalf; and that, while he made no attempt to interfere with Woodman's manner of driving, he did not yield him the sole right of control. Upon such findings, the defendant would be liable.
Judgment on the verdict.