Johnson v. Carroll

RUGG, C. J. On July 4, 1927, a collision occurred on a public way between an automobile owned and operated by the plaintiff Charles J. Johnson, in which all the plaintiffs were riding, and an automobile owned by Warren B. Osborne which was being operated by Vincent G. Carroll, not as the agent of Osborne but with his permission and in his absence. Actions were brought by the several plaintiffs to recover compensation for personal injuries and property damages against Osborne. At that time the plaintiffs understood that Osborne owned the automobile which Carroll was operating. The several declarations alleged causes of action because of the negligence of Osborne or his agent in operating his automobile. Subsequently the plaintiffs filed motions to amend their several writs and declarations so as to strike out Osborne as defendant and to transform them into actions against Carroll founded on his negligence in operating the automobile. Notice of these motions was given to Osborne but not to Carroll, and they were allowed by the court over Osbornes objection. Thereafter order of notice for personal service was issued directed to Carroll. In due time he appeared and filed a motion to dismiss and an answer in abatement in each case, based on the facts already narrated. Orders were entered denying the motions and overruling the answers. The correctness of those orders has been reported for our determination.