Donahue v. Vorenberg, 227 Mass. 1

Donahue v. Vorenberg

227 Mass. 1 | Mass. | 1917

Loring, J.

On the plaintiffs’ evidence the jury were warranted in finding the facts of these two cases to be as follows: The defendant instructed his chauffeur (Malloy by name) to hire a man as a helper and go with him to Swampscott (where the defendant had a garage) and to overhaul a car which he (the defendant) had recently bought. Pursuant to these instructions Malloy called *4up one Smith on the telephone and hired him to go to Swampscott. He arranged to have Smith meet him “at the corner of Massachusetts Avenue and Washington Street, the Northampton Street station of the Boston Elevated” Railway Company at nine o’clock in the evening of the same day. At that time Malloy went with the car to the place appointed taking with him a friend by the name of Perkins. Smith did not keep his appointment. After waiting some time Malloy determined to abandon his duties as chauffeur for the defendant. With Perkins he drove to Huntington Avenue and invited two women whom they met there to go with them. Malloy then drove to a hotel in Brighton where they all had two or three drinks of whiskey. Malloy had taken a drink of whiskey earlier in the evening on his way to the Northampton Street station. One of the women left the others at the Brighton Hotel. Then Malloy with Perkins and the other woman (McCarthy by name) went to the Charlesgate Garage in Boston. The Charlesgate Garage is situated on the corner of Massachusetts Avenue and Newbury Street and is the garage at which the defendant kept his car. At the Charlesgate Garage Malloy was told that Smith had sent word that he had been delayed but that he would meet him (Malloy) at the Hotel Hayward at midnight. While at the Charlesgate Garage Malloy told one Kelly who was in the employ of the defendant as a temporary chauffeur that he wanted him to go with him to the Hotel Hayward. The Hotel Hayward is in Hayward Place near the junction of Washington and Boylston Streets. Thereupon Malloy with Perkins, Kelly and the McCarthy woman went to the Hotel Hayward. They waited there for Smith until quarter past twelve. While waiting Malloy, Perldns and the McCarthy woman had several more drinks of whiskey. Kelly however drank water and only water. At quarter past twelve Perkins was so drunk he had to be helped into the car and Malloy was intoxicated. Malloy then started for the garage in Swampscott intending to leave the McCarthy woman at a place in Cambridge which was on the direct route to Swampscott and Perkins at a place in Somerville which was also on that route. On leaving the Hotel Hayward Malloy drove up Boylston Street to Exeter, through Exeter to Commonwealth Avenue thence to Massachusetts Avenue and across the Harvard Bridge. In driving up Boylston *5Street he ran over and killed two men. It is for the death of these two men that these actions are brought. The details of the accident need not be stated because it is admitted that there was evidence that the deceased and both of them were in the exercise of due care and that the accident was caused by Malloy’s negligence. Two questions only are raised by the exceptions, namely: (1) whether there was evidence that at the time that he ran over the men Malloy was “engaged in his [the defendant’s] business” and (2) whether the judge was wrong in the instructions under which he left that question of fact to the jury.

The defendant’s testimony warranted the jury in finding that when Smith failed to keep his appointment with Malloy at the Northampton Street station at nine o’clock in the evening, he (Malloy) abandoned his duties as the defendant’s chauffeur and never undertook to resume them.

1. The first exception argued by the defendant is that taken by him to the refusal of the presiding judge to direct a verdict for the defendant. This exception is based on the ground that even if the jury took the view of the facts most favorable to the plaintiffs, they were not warranted in finding that at the time Malloy ran over the two men on Boylston Street he was “engaged in his [the defendant’s] business.”

The argument in support of this proposition is that the primary object upon which Malloy was bent at the time of the accident was to take Perkins and the McCarthy woman to their homes in Cambridge and Somerville and that, until he had done that, he as matter of law had not resumed his duties as a servant of the defendant. If the jury had found that Malloy did not intend to resume his duties as the defendant’s chauffeur until he had taken Perkins and the McCarthy woman home the defendant’s contention would have been correct. But there was explicit evidence that Malloy went to the Hayward to meet Smith and the jury were warranted in finding that when he left the Hayward he left to go to Swampscott, intending incidentally to leave the McCarthy woman and Perkins where they wished to be left, at two different places on the direct route to Swampscott. Malloy’s intention in this respect is decisive. Ross v. John Hancock Mutual Life Ins. Co. 222 Mass. 560. If it was Malloy’s intention on leaving the Hotel Hayward to go to Swampscott pursuant to instructions *6which had been given him by the defendant, the fact that he intended incidentally to gratify a private desire of his own by leaving the McCarthy woman and Perkins at two different places on the route is not material. McKeever v. Ratcliffe, 218 Mass. 17. Fitzgerald v. Boston & Northern Street Railway, 214 Mass. 435. It was a question of fact for the jury whether it was the intention of Malloy on leaving the Hotel Hayward to go to Swampscott pursuant to the instructions which he had received from the defendant. There being evidence on which the. jury could have found that that was Malloy’s intention, the judge could not have directed the jury to render a verdict in favor of the defendant.

2. The next exception argued by the defendant is the exception taken to the refusal to give the seventh and eleventh requests for rulings. What has been said disposes of these exceptions. In support of this exception the defendant has argued that after Malloy abandoned his duties as a chauffeur for the defendant early in the evening he could not resume his duties as the defendant’s employee without an implied assent on the part of the employer to the resumption of those duties. And since Malloy had become intoxicated between the time when he abandoned his duties and the time when he undertook to resume them (if the jury found as they must have found that he undertook to and did resume them) he did not in legal contemplation resume his duties and become “engaged in his [the defendant’s^ business.” We cannot accede to this contention.

3. The last exception is the exception taken to a part of the charge. The defendant complains that in his charge the presiding judge instructed the jury that, if Malloy had resumed the physical route which led to Swampscott, he resumed his duties as chauffeur for the defendant. And he urges that in case that be not true if each and every part of this part of the charge is taken into consideration yet, taking what the judge said as a whole, it might reasonably have been understood by the jury to mean that.

In support of this contention he has taken sentences which standing alone and without regard to the rest of the portion of the charge excepted to might be open to that objection. But taking the portion of the charge excepted to as a whole it is not open to it. Three times during the portion of the charge excepted to (and *7the portion is not a long one) the judge told the jury that they must find that at the time of the accident Malloy was going to Swampscott pursuant to instructions which he had received from the defendant. In one place he said: “If at the time of the accident Malloy was engaged in going to the destination under the instruction and orders of his employer, which had not been revoked or altered or changed.” Again immediately after that the judge said: “ if at that time he was engaged in going to Swampscott under instructions to do that, it would make no difference whether he had one woman or two, or one woman and two men in the automobile at the time.” And again: “if at the time of the accident his purpose and intention was to carry out the instructions of the employer,” etc.

There is nothing in the cases relied upon by the defendant other than the three mentioned above which require special notice. The principles of law on which the decision rests are settled in this Commonwealth. It is not necessary to notice cases from other jurisdictions relied upon by the defendant.

Exceptions overruled.