
    
      Northern District
    
    No. 4575
    WALTER GOMES v. ROBERT E. MARSH
    (September 25, 1952)
   CAVAN, J.

This is an action of tort in which the plaintiff seeks to recover for damages to his automobile, caused, he alleges, by the negligence of the defendant.

This case and the case of Walter Gomes vs. Charles Josephson and Sherin Motors, Inc., 4 Mass. App. Dec. 36, were tried together. For some reason, each appeared on different lists for sittings of the Appellate Division, and were not heard by the same judges.

On October 9, 1950, the plaintiff drove his automobile to the garage of Sherin Motors, Inc., in Cambridge, Massachusetts, to have its radiator repaired. It was raining, at the time, and one Josephson, the-garage foreman, drove the plaintiff in said automobile to his place of employment and then proceeded to drive the automobile back to,the garage, to make the necessary repairs.

At the intersection of Dana Street and Massachusetts Avenue, in said Cambridge, the plaintiff’s automobile, driven by Josephson on the way to the garage, was in collision with the defendant’s automobile, and the plaintiff’s automobile was thereby damaged.

Josephson, and another witness, gave testimony that he entered the intersection from Dana Street at a speed of not more than eight miles an hour and that the plaintiff’s automobile was in the intersection before the defendant’s car entered it.

The defendant testified that he was proceeding on Massachusetts Avenue, at a speed of twenty miles an hour, and was going at a speed of from ten to twelve miles per hour at the time he entered the intersection. He saw the Gomes car when it was one hundred and fifty feet back from the point of collision. He then placed his car at a point one hundred feet from where the accident occurred. He did not see the Gomes car again until it was in front of him, and he applied his brakes just an instant before the accident.

Marsh further testified that his car was to the left of the center of Massachusetts Avenue, just before the accident, and that he placed his left hand fender four feet from the left hand curb immediately following the accident, and before his car was moved.

The trial judge found for the defendant, after ruling that, in the operation of the Gomes car, to and from Rindge School (Gomes’ place of employment) Josephson was the agent of Gomes.

John J. Campbell, for the Plaintiff.

Roland J. Morin, for the Defendant.

When Josephson left Gomes, at his place of employment, and drove away in Gomes’ car, it was for the purpose of getting it to the garage, of which he was foreman, to repair it. Under these circumstances, he was not the agent of Gomes, in so driving it. He thereby took the automobile into the care and custody of his employer, Sherin Motors, Inc., and a bailment was thereby created. Rourke vs. Cadillac Automobile Co., 268 Mass. 7, 8; Nash vs. Lang, 268 Mass. 407, 410. It was error to rule that, under such circumstances, Josephson was the agent of Gomes.

In the report of this case, there is no specific finding as to the negligence of Josephson or the defendant. "While a general finding imports a finding of all subsidiary facts essential to that conclusion, Moss vs. Old Colony Trust Co., 246 Mass. 139, 143; Nash vs. Lang, 268 Mass. 407, 409, under the ruling of the judge, that Josephson was the agent of Gomes, if Josephson was negligent, and his negligence contributed to the accident, whether or not the defendant was negligent was not essential to the finding, but it would be otherwise if a bailment had been found.

In the report of the case tried with this case, Appellate Division, No. 4574, the judge found that Josephson was negligent “when in a heavy rain he entered into Massachusetts Avenue without waiting for Marsh to pass.” Nothing is reported as to the right of way. If the defendant in this case was negligent, the plaintiff, bailor, may recover. Nash vs. Lang, supra.

Because of error in the judge’s ruling, the finding for the defendant is to be vacated and a new trial ordered.  