326 Mass. 583 | Mass. | 1950
The female plaintiff (hereinafter called the plaintiff) was negligently injured by the defendant while she was riding from Boston to Worcester on a gratuitous “trip pass” obtained by her husband who was a freight trucker employed by the defendant in Worcester. There is a count by the husband for consequential damages. There were verdicts for the plaintiffs. The defendant excepted to the admission of certain evidence and to parts of the charge, as well as to the denial of its motions for directed verdicts.
The pass was issued on March 23, 1944, to “Mr. Giulio Tortorelli & Wife” and was “good for one trip only until June 23, 1944,” between Boston and Worcester. An important underlying question is the effect to be attributed to the “conditions” on the back of the pass purporting to exonerate the defendant from liability for negligence. These conditions read in part as follows: “In consideration of receiving this free pass, each of the persons named thereon, using the same, voluntarily assumes all risk of accidents and expressly agrees that the Company shall not be liable under any circumstances, whether of negligence of itself, its agents, or otherwise, for any injury to his or her person, or for any loss or injury to his or her property; and that, as for him or her, in the use of this pass, he or she will not
The plaintiff’s husband testified that on March 5, 1942, he went to the defendant’s freight house in Worcester and talked with one Secord, a foreman, who hired him. At that time he was unmarried and there was no talk about a pass for his wife. After he had been working for three months he obtained a pass. The accident was on April 9, 1944, and down to that time the husband had received in all ten or twelve passes from Secord, under whom he worked. All the passes were for him and his wife for rides between Boston and Worcester.
The following testimony of the husband was admitted subject to the defendant’s exception. When he was hired on March 5, 1942, Secord told him he would receive a stated sum an hour and also said, “You get a free pass every three months, and after ten years, you get a regular pass like everybody else has got.” The husband said, “I’ll take it.” He was married in 1943 and after that he talked with Secord about passes for both himself and his wife. Every time he got a free pass he had to ask for it and tell why he wanted it.
During the cross-examination of the husband, a death certificate of the city clerk department of Worcester was admitted in evidence. This gave the date of Secord’s death as July 29, 1942.
One Oldroyd, an assistant to the general manager of the. defendant, testified that he did not think that in 1942 the foreman in the Worcester freight house had the right to hire employees and that he knew that the foreman did not have the right to fix the terms of employment at that time;
There was no evidence that Secord ever hired any other employee; or that Boardman ever delegated to Secord any authority to hire any employee; or that any officer or agent whose knowledge would be binding upon the defendant knew of the conversation which the husband testified he had with Secord. All the evidence relating to the scope and nature of Secord’s duties is substantially outlined above. It is barren of any suggestion that it was incidental or reasonably necessary to the performance of Secord’s duties as foreman to hire the husband or to fix the terms of his employment. The mere fact that Secord was a foreman gave him no such authority. Langston v. Postal Telegraph-Cable Co. 6 Ga. App. 833. Bonnell v. State, 64 Ind. 498, 504. Mechem, Agency (2d ed.) § 1041. See Montgomery Ward & Co. v. Arbogast, 53 Wyo. 275, 288.
We think that there was error in the admission in evidence of the husband’s testimony to which exception was taken and in leaving it to the jury to say whether the pass was issued as one of the terms of the employment. See
Exceptions sustained. Judgment for'the defendant.
