275 Mass. 521 | Mass. | 1931
This is an action to recover for the conscious suffering and death of the plaintiff’s intestate as a result of personal injuries received on June 13, 1923, on the island of Middle Brewster, in Boston harbor. The declaration contains two counts, the first for conscious suffering and the second for death, and both allege that the intestate was shot “owing to the wilful, wanton or reckless act of the defendant or the wilful, wanton or reckless act of
The undisputed testimony showed that the intestate, a boy sixteen years of age, was killed by a shot from a concealed spring or trap gun set up inside the window of a small building, which will hereafter be referred to as the “cottage,” in such a manner that it would be discharged if the window were raised or attempted to be raised by any one. It is the contention of the plaintiff that this gun was placed behind the window by one Roose, a servant of the defendant, acting within the scope of his employment.
It is not disputed that the defendant’s father bought the island about the year 1891 and lived there until 1914 or 1915; that he died intestate in 1920, and at that time he owned eleven twelfths of the island; that the defendant and his mother were his only heirs. On the part of the island owned by the defendant there was a large frame house on the top of a hill, and there was also the cottage where the shooting occurred, and a boat house. There was evidence that in 1922 and 1923 the defendant with his mother’s consent had the right of control of the property. She died in 1925. Roose was a lobster fisherman; he had occupied the cottage for some years before the shooting occurred, and previously had been in the defendant’s employ. The defendant, who was called by the plaintiff, testified that in 1922 he owned a boat and Roose had charge of it; that Roose was subject to his orders respecting the boat and what he should do on the island. The house on the hill had not been occupied since 1914 or 1915; it was in a dilapidated condition, and contained no furniture. About 1921 the defendant made an arrangement with Roose by which, when the latter was not engaged in fishing in the winter,-, he was to make some repairs on the house, and the defendant permitted him to live in the cottage. The next year the defendant had other men repairing the property, and Roose was hired to take these men to and from the island when required. The defendant never lived there after his father’s death. He testified that there was no personal property
The defendant further testified that Roose had the right to permit people to land on the island; that he had no right to warn people off; that he, the defendant, placed no limitations upon persons landing there, and never told any one that Roose was his caretaker; that Roose was not to take care of the property for himself or for his mother. The plaintiff introduced testimony by other persons that Roose had been seen repairing the house and working on boats in 1922 or 1923; that he had warned people off who attempted to land on the island; that on one occasion about a year before the shooting he had been seen to do so when the defendant was there; that Roose had a workshop on the island and tools for repairing boats and motors.
The evidence tended to show that the plaintiff and his sons, Vittorio, the deceased, and Joseph, were shell fishermen and were accustomed to gather periwinkles on the island and on other neighboring islands; that the plaintiff with the knowledge of Roose had at times kept a small boat on Middle Brewster for use in his work. The son Joseph testified, in substance, that on one occasion he thanked the defendant for being allowed to keep his boat there, and that the defendant replied, “It is all right as long as Roose says so. He has gharge of the place.” He further testified that he kept the boat there afterwards.
The plaintiff testified, in substance, that on the morning of the day his intestate was shot he left Boston about 2:30 a.m. accompanied by his two sons; that he left Joseph on Calf Island and Vittorio on Middle Brewster about 5 a.m.; that Vittorio had a bag with him, and he gave him
The chief of police of Hull testified that he made an examination of the premises where the deceased was shot on the same morning about 9:50 o’clock; that the window was broken in the cottage on the back part of the piazza; that there was blood on the floor of the piazza; that the window was open just enough for him to get his fingers under it but that he could not raise it any higher'; that a shade was down over the window, and a towel hung up on the side of the window which covered a cord; that there was a hole in the shade; that the end of the muzzle of the rifle was twenty-three inches from the window; that there was a board, the upper end of which had a notch in it to hold the gun in position; that there was a string attached to the trigger which ran back to a pulley on the sink, then up to a corner of the ceiling and down to the corner of the window where it was attached to a screw-eye; that if any one attempted to raise the window at all the gun would be discharged; that there was an empty shell in the gun and a bullet was found seventy-five to eighty feet back of the cottage near
The defendant testified that at the time of the shooting he was at his summer home in Nantucket; that he did not own the rifle or know that it was on the island; that he never had a rifle there, and did not know that Roose had one; that he had no knowledge of the contrivance which had been placed in the cottage and never saw it until it was produced in court at the hearing when Roose was charged with manslaughter. Roose pleaded guilty to an indictment for that offence.
At the close of the evidence for the plaintiff the defendant rested and filed a motion for a directed verdict on each count. The motion was denied subject to the defendant’s exception.
The ground of liability alleged in each count is based upon the wilful, wanton or reckless act of the defendant or of his agent or servant while engaged in his business. No liability could be founded upon either ordinary or gross negligence. O’Leary v. Fash, 245 Mass. 123, and cases cited. The cause of action rests wholly upon the allegations of wilful, wanton and reckless conduct of Roose for which the defendant is alleged to be responsible. It is conceded by the defendant that the setting up of this gun could be found to be a wilful, reckless and wanton act. If it could be found from the evidence that the boy in going to the island to gather shellfish was a licensee, he could not exceed the permission given him by Roose or the defendant. The license did not authorize him to endeavor to raise the window or to attempt to enter the cottage, and in making that attempt he became a trespasser as to whom no duty was owed except to refrain from wilfully and wantonly injuring him. It is a well established principle of law that no one can be justified in wilfully inflicting injury on another. A wilful and reckless act done with the deliberate intention of doing harm to a trespasser creates a ground of liability for the harmful consequences of such act. If a person is a trespasser, the only duty the proprietor has
It is the contention of the plaintiff that Roose was the defendant’s servant and agent, that he was a caretaker of the defendant’s entire property on the island, and that the defendant was liable for the acts of Roose in setting up the spring gun or trap, by the discharge of which the deceased met his death. It is the contention of the defendant that Roose was employed by him only to care for and sail his boat, and to make certain specific repairs upon the buildings on the island. If we assume upon the meager evidence that Roose was a caretaker, having general charge of the defendant’s entire property on Middle Brewster, the question remains whether the act of Roose in setting up this gun for the protection of the defendant’s property could be found' to have been within the scope of his employment as the defendant’s servant or agent. It is settled that, if the .act of the servant or agent is done in the execution of the authority given him by the master and for the purpose of performing what he was directed to do, the master is responsible whether the wrong done be occasioned by negligence or by a wanton and wilful purpose to accomplish his business in an unlawful manner; but if the servant or agent does a wrongful act without authority and not for the purpose of executing the orders or doing the work of his master, the latter is not responsible therefor. Howe v. Newmarch, 12 Allen, 49. Levi v. Brooks, 121 Mass. 501, ,505. Smith v. Peach, 200 Mass. 504. Lamanna v. American Express Co. 230 Mass. 564. Douglas v. Holyoke Machine Co. 233 Mass. 573, 576. Zerngis v. H. P. Hood & Sons, 255 Mass. 603, 605. No contention is made that the
No one of the cases cited by the plaintiff is at variance with what is here decided.
It is the contention of the defendant that upon the enactment of St. 1918, c. 179, by which Middle Brewster Island was ceded by this Commonwealth to the Federal government, the courts of Massachusetts have no jurisdiction to entertain the action. The ultimate decision on the merits must be against the plaintiff, therefore we have not considered that question. As the judgment will be the same, there seems to be no objection to stating the grounds of. substantive law which support the result. Commonwealth v. McNary, 246 Mass. 46, and cases cited at page 48. Central Trust Co. v. Howard, ante, 153, 158. The defendant’s motion for a directed verdict should have been granted. The entry must be
Exceptions sustained.
Judgment for defendant.