O'Neil v. National Oil Co., 231 Mass. 20

O'Neil v. National Oil Co.

231 Mass. 20 | Mass. | 1918

Carroll, J.

The plaintiff was injured by stepping into a hole-containing a gasoline tank, near a private driveway on the premises of Frederick S. Converse, by whom she was employed as a housemaid. One of her duties was to pick flowers for the table from the garden. The defendant delivered gasoline to Converse from a truck driven by one Stevenson in its employ; the gasoline was poured into a tank buried in a grass plot near the edge of a circular driveway. It was thought there was a leak in the tank and Stevenson hired a man to take the tank up. A round hole about four or five feet in diameter and four or five feet deep was dug, and left open and unprotected for three days; when in this condition between eight and nine o’clock on a foggy night, while the plaintiff, in company with two other housemaids employed by Converse was “ getting an airing,” she fell into the hole and was injured. She testified that she did not leave.the driveway, that the hole extended into it, and that she was injured while in the driveway. There was other evidence indicating that she fell on the lawn while on her way to get a pear from one of the trees. Stevenson, the driver of the truck, whose duty it was to sell for the defendant gasoline, oils and tanks, testified, that he informed Quinn, the defendant’s president, that he was going to “take up and, if possible, repair Mr. Converse’s tank,” and Quinn told him to “go ahead.” Stevenson paid for the excavating and reported to Quinn that Converse was satisfied with the tank; a bill for the amount paid by Stevenson was sent to Converse by Quinn. The plaintiff entered into a covenant not to sue Converse and received from him $1,500. The jury found for the plaintiff in the sum of $5,000.

The jury could have found that when injured the plaintiff was not upon the lawn, but was on the driveway. She so testified, and there was evidence that while the tank was from six inches to a *26foot from the driveway before the excavating was begun, the hole made by the defendant’s direction was four or five feet deep and four or five feet in diameter. There was, therefore, some evidence that the unguarded hole extended into the driveway and that the-plaintiff while walking thereon was injured.

■ The defendant in doing the excavating was an independent contractor, whose duty it was to use reasonable care to guard the work, and in a proper way to protect the employees of Converse, lawfully using the driveway, from the danger of falling into the hole. If the hole was in the driveway designed and used for travel, the defendant was bound to anticipate that it was a source of danger to persons walking thereon, and to provide against what was likely to happen. Hill v. Winsor, 118 Mass. 251. Boutlier v. Malden, 226 Mass. 479.

The defendant relies on Carey v. Baxter, 201 Mass. 522, where the plaintiff was injured by falling from the side door of her tenement because of the removal of three wooden steps by a contractor who was excavating for a walk to be laid along the sidewalk in front of the house and from the street to the front door and to the side door. That case is plainly distinguishable from the case at bar. The plaintiff had been told by the landlord what was to be done; she knew that the work involved the removal of ,the steps and she could see from her tenement that the work was going on. The defendant had no reason to suppose that the plaintiff was ignorant of the condition of the walk and the removal of the steps, and he had no reason to anticipate harm to the plaintiff. It was not probable that she would attempt to use the steps when she could see to what extent the work was done and the defendant was not bound to foresee the improbable. -

In the .case at bar the plaintiff testified she had often, before this time, taken walks, passing where the tank was, though she did not remember seeing it. In using the driveway for her own convenience she was rightfully on the premises, and stood toward the defendant in the right of her employer. While the defendant had the right to dig the hole on the employer’s premises, it was liable to the plaintiff for its negligence, she being lawfully where she was. Boutlier v. Malden, supra. Massaletti v. Fitzroy, 228 Mass. 487, 492, 493 and cases cited.

It does not plearly appear how long after the opening was made *27the injury happened; but the jury must have found that it occurred before the work undertaken by Stevenson was completed, and accepted by Converse. Stevenson testified that he asked the chauffeur or gardener to “look out for it, and put some boards around it.” This the chauffeur denied. But, even if it were found to be true, the defendant was not relieved of its. responsibility as an independent contractor, by delegating its business to an employee of Converse who had no authority to relieve the defendant of the duty it had assumed. Nor was the defendant relieved from liability to the plaintiff merely because Stevenson said to Converse that he thought it “a good idea to fill the tank and leave it open so in case it showed a leak next day, it would not have to be dug up again.” The work had not been accepted by Converse at this time, and there is nothing to show that he was informed or had any knowledge that the opening was left unguarded and unprotected.

There was evidence that the plaintiff and the other maids picked fruit in the daytime and no objections had been made. Even if she were on the lawn and not on the driveway and at the time was looking for a pear, the. jury could infer that in passing over the lawn, although not invited, she was not there unlawfully so far as the defendant was concerned and could recover for its negligence. Massaletti v. Fitzroy, supra.

There was evidence that Stevenson was authorized to do the work. Before undertaking it he reported to the defendant’s president and was authorized to go on with it; moreover, he was reimbursed for the amount expended by him, and Converse paid the defendant for the work it had done. This was evidence of a ratification, and by adopting the act of Stevenson, the defendant became responsible for his conduct in performing the work. Dempsey v. Chambers, 154 Mass. 330. Nims v. Mount Hermon Boys’ School, 160 Mass. 177.

The defendant asked the judge to instruct the jury that “there is no evidence that the act of Stevenson in digging up the tank was within the scope of his employment.” As there was evidence that the act was authorized and ratified, this request was properly refused. The defendant further contends that the judge left it to the jury to find that the act of digging the hole was within the scope of Stevenson’s employment, independently of the talk be*28tween him and Quinn. This part of the charge is open to the construction that the judge was then calling the jury’s attention to the distinction between the acts of Stevenson done for some purpose of his own, and the acts of the corporation; and that, irrespective of the talk with Quinn, the corporation would not be liable for such acts of Stevenson. Following this the judge instructed the jury on the meaning to be attached to the talk with Quinn. But, even if the instruction authorized the jury to find that Stevenson was acting within the scope of his employment without considering the evidence of ratification and express approval, and assuming that there was no evidence in the case to support this instruction, the question now urged is not before us. The bill of exceptions recites: “the defendant claiming to be aggrieved by the rulings and refusal of the court to rule as requested and to give the instructions as requested, submits this bill of exceptions.” The defendant did not call the judge’s attention to the objection it now relies upon; it excepted generally to the rulings, and saved no specific exception to any part of the charge as given. See Barker v. Loring, 177 Mass. 389; Leverone v. Arancio, 179 Mass. 439, 447; D’Arcy v. Mooshkin, 183 Mass. 382; Henderson v. Raymond Syndicate, 183 Mass. 443; Savage v. Marlborough Street Railway, 186 Mass. 203.

The question whether the plaintiff accepted the $1,500 in discharge or release of Converse from all liability for the injuries received by the accident, — she having discontinued the action against him as provided in the agreement, — was a question of fact for the jury. ■ They were fully instructed on this point. The covenant not to sue Converse did not purport to release the defendant; but not being a party or privy to the instrument it could introduce oral evidence to .show that the plaintiff accepted the money in release of all claims against her employer, and on the evidence the jury could have so found; but the question was for them to decide, and they had the right to say that it was not accepted for this purpose. Matheson v. O’Kane, 211 Mass. 91. Johnson v. Von Scholley, 218 Mass. 454.

The defendant asked the court to instruct the jury, “If the jury find there is any liability on the part of ther defendant, they must consider the payment of $l,500.by Converse in mitigation of damages.” The request was refused. While the jury must have *29found that this money was not received from Converse to release or discharge him from liability and that it was received from him in consideration of the plaintiff’s covenant not to sue him for the personal injury she had received, the $1,500 should be applied in reduction of her damages. She .was entitled to maintain an action against each or all who contributed to her injury, but she was entitled to but one satisfaction. Her cause of action was not extinguished by the receipt of the money. It was, however, a partial satisfaction of her claim; and she cannot receive, for the same wrong, remuneration in excess of her actual damage. It would be unjust for a plaintiff to retain money received from one of several tortfeasors under a covenant not to sue him for the injury, and to recover from the other tortfeasor full satisfaction for the same injury. In a joint contract obligation where money is received from one debtor under a contract never to sue him, the payment made in consideration of the agreement is a payment on account of the debt, and to that extent is a discharge of the debt as to all the debtors. See 25 Harv. Law Rev. 203,218. The same principle applies to an action sounding in tort. In Dwy v. Connecticut Co. 89 Conn. 74, 79, the agreement of the plaintiff with one tortfeasor was construed as a covenant not to sue him; but evidence was admitted of the amount paid by him in reduction of damages in the action against the other tortfeasor. This rule was followed in Bloss v. Plymale, 3 W. Va. 393, 409, Snow v. Chandler, 10 N. H. 92, 95, Chamberlin v. Murphy, 41 Vt. 110,118. The same ruling was made in the trial court in Rice v. Reed, [1900] 1 Q. B. 54, 58. It was assumed in the court of appeal that this ruling was correct, and apparently this course was followed in Duck v. Mayeu, [1892] 2 Q. B. 511. See also Heyer v. Carr, 6 R. I. 45; Chicago v. Babcock, 143 Ill. 358; Miller v. Beck & Co. 108 Iowa, 575, 578; Ellis v. Esson, 50 Wis. 138, 154; Pogel v. Meilke, 60 Wis. 248; Miller v. Fenton, 11 Paige, 18.

It follows that the instruction asked for should have been given, and this exception must be sustained. The other exceptions are overruled. If within thirty days after the date of the rescript the plaintiff remits all of the verdict in excess of $3,500, judgment is to be entered for the plaintiff in the sum of $3,500; otherwise, the exceptions are sustained.

So ordered.