Although supporting statements in our cases have been few, we conclude that negligent entrustment of a motor vehicle as a basis of liability against the owner or person in control of the motor vehicle (hereinafter also referred to as the owner) may be shown under the common law, and without reference to any violation of G.L.c. 90, § 12. Carter v. Towne, 98 Mass. 567. Woodman v. Haynes, 289 Mass. 114, 117. See Zarski v. Creamer, 317 Mass. 744; Ellingsgard v. Silver, 352 Mass. 34; Restatement 2d: Torts, § 390. See also Restatement 2d: Torts, §§ 307 and 308.
The question whether or not the Massachusetts act applies to injuries suffered by employees outside the State when the contract for hire was not made in Massachusetts has not been directly decided by the courts of that Commonwealth. However, in Zarski v. Creamer, 317 Mass. 744, 59 N.E.2d 704 (1945), involving an action brought in Massachusetts in which the defense raised the fellow servant doctrine, the court said that the Massachusetts workmen's compensation statute does not apply when the accident occurred in New Hampshire and there was no evidence that the plaintiff was hired in Massachusetts. The statement of the court in Zarski suggests that the Massachusetts court would hold that Seale was not subject to the workmen's compensation act of that Commonwealth.
In this state of the pleadings, the verdicts against Hertz could not be based on any negligence apart from or independent of that of Leahey. Lemay v. Springfield St. Ry. 210 Mass. 63, 67-68. Foley v. John H. Bates Inc. 295 Mass. 557, 563. Zarski v. Creamer, 317 Mass. 744, 746-747. Accordingly, the verdict against Hertz should be in the same amount as the verdict against the estate of Leahey, whose negligence appears to have furnished the yardstick for measuring the "degree of culpability," for purposes of computing damages under G.L.c. 229, § 2, as amended.
1. The function of a motion for a directed verdict is to challenge the opponent's right to recover as the case stands after the evidence is in. Rule 71 of the Superior Court (1954). If the pleadings are not specified in the motion and it is allowed, we must assume that the judge acted with the pleadings in mind, so that the correctness of his action may be supported by the showing of a variance. Brasslavsky v. Boston Elev. Ry. 250 Mass. 403, 404. Glynn v. Blomerth, 312 Mass. 299, 302. Zarski v. Creamer, 317 Mass. 744, 747. Sandler v. Elliott, 335 Mass. 576, 581-582. If such a general motion is disallowed, it reaches only substance and no question of a variance or a defective declaration is presented. The disallowance is sustained if the evidence shows a right to recover in any form of action ( Oulighan v. Butler, 189 Mass. 287, 289; Weiner v. D.A. Schulte, Inc. 275 Mass. 379, 385; Leigh v. Rule, 331 Mass. 664, 667-668; Supreme Coat Co. v. Lyon Warehouse Distrib. Co. 332 Mass. 505, 507), and, if necessary, an amendment to base the evidence on a proper declaration may be allowed. G.L.c. 231, § 125. Whitney v. Houghton, 127 Mass. 527, 529.
The ruling can be upheld on the ground that the automobile was not operated by the defendant, as alleged in the declaration. Zarski v. Creamer, 317 Mass. 744, 746-747. That the defendant under G.L. (Ter.
Glynn v. Blomerth, 312 Mass. 299, 302. Zarski v. Creamer, 317 Mass. 744, 747. Cases like Leigh v. Rule, 331 Mass. 664, on which the plaintiff relies to support his contention that the variance point is not open on the bill of exceptions, are cases where the trial judge denied the motion for a directed verdict.
We find it difficult, if not impossible however, to reconcile and harmonize the recent cases on the subject in the various jurisdictions. Carter v. Uhrich, 125 Kan. 192, 264 P. 31; Zarski v. Creamer, 317 Mass. 744, 59 N.E.2d 704; Sandefur v. Sandefur, Tex.Civ. App., 232 S.W.2d 111, and Blanchard v. Gallahar, 72 Ga. App. 132, 33 S.E.2d 379, all cited by defense counsel are readily distinguishable on the basis of their facts from the case at bar (without regard to any inconsistencies in the application of their statements of the fellow servant rule) but Charles Weaver Co. v. Harding, 182 Miss. 345, 180 So. 825 (also cited) is not so readily distinguishable, if at all, from cases like Haraway v. Mance, 186 Ark. 971, 56 S.W.2d 1023, and French v. Cherry, 186 Ark. 991, 57 S.W.2d 404 which reached opposite results. No Oklahoma case is cited, and we have found none directly in point.
Her own testimony acquits defendant of liability on said theory. Berry v. City of Springfield, 13 S.W.2d 552; Bobos v. Krey Packing Co., 317 Mo. 108, 296 S.W. 157; Metropolitan L. Ins. Co. v. Gosney, 101 F.2d 167; Clark v. Harnischfeger Sales Corp., 264 N.Y.S. 873, 238 A.D. 493; Zarisky v. Creamer, 317 Mass. 744, 59 N.E.2d 704. Everett Hullverson for respondent-appellant Marjory Jacobs Roth on Her Appeal.
There was plainly a variance, and the verdict cannot stand. Glynn v. Blomerth, 312 Mass. 299. Zarski v. Creamer, 317 Mass. 744, 747. Coburn v. Moore, 320 Mass. 116, 123, 124. Exceptions sustained.
Puro v. Heikkinen, 316 Mass. 262, 266. Zarski v. Creamer, 317 Mass. 744, 747. The evidence introduced by the defendant to establish its defence will now be stated in summary form.