Brown v. Jarvis Engineering Co.

• Decision Date: 20 May 1896
• Parties: BROWN v. JARVIS ENGINEERING CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

166 Mass. 75

43 N.E. 1118

BROWN v. JARVIS ENGINEERING CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 20, 1896

COUNSEL

Sherman L. Whipple and George A. Saltmarsh, for plaintiff.

Stephen H. Tyng and George F. Piper, for defendant.

OPINION

LATHROP J.

This is an action of tort for personal injuries. The defendant had a contract with the Advertiser Company to construct a brick and mortar foundation for a printing press in the basement of the Advertiser Building. It sent three or four of its workmen there to do the work, in charge of and under the direction of one Healey. While the men were at work, the plaintiff, a driver of a van containing rolls of paper, backed up his van to the rear entrance of the building to deliver the paper to the Advertiser Company. It was necessary that the defendant's work should be suspended while the paper was being unloaded and rolled into the basement. One of the defendant's men, without the knowledge or request of the plaintiff, got upon the dray for the purpose of assisting in unloading it, and carelessly set in motion a roll of paper which rolled from the dray, and struck and injured the plaintiff. There was evidence tending to show that Healey ordered his men to go out and assist in unloading the van, so that the defendant's work might be suspended as short a time as possible. Healey testified that he gave no such order, and had no knowledge that any of his men were assisting in unloading the van. If further appeared that Healey's duties were to superintend the construction of the foundation for the printing press, and that the three or four men with him were under his direction, and in the employ of the defendant, and that these men were tenders or helpers in carrying brick or mortar. They were paid by the hour, and when their work was suspended for a time they received no pay from the defendant. They did not receive any pay for the time the work was suspended during the unloading of the dray, which consumed about one hour's time. The defendant requested two rulings: First, that the section could not be maintained; second, that the foreman of the defendant had no authority to bind the defendant by ordering his men to help unload the rolls of paper from the dray driven by the plaintiff, and, if he did so order any of his men, that the defendant would not be responsible for their acts while engaged in helping unload the van. Both of these instructions the presiding judge refused to give, and instructed the jury that, if the foreman, for the purpose of carrying forward the work which he was sent to do, and for the benefit and advantage of the defendant, ordered his men to assist in unloading the dray and one of them did so assist, the defendant would be responsible for any injury he may have suffered by the careless act of the workmen who assisted in unloading the van. The jury returned a verdict for the plaintiff, and the case comes before us on the defendant's exceptions to the refusal of the judge to give the rulings requested and to the ruling given.

The question of law presented by these exceptions is whether the evidence would warrant a verdict for the plaintiff, and this depends upon whether the foreman and workman acted within the scope of their employment. We are of opinion that on the evidence a verdict for the plaintiff would not be warranted. The defendant employed these men to construct a foundation in the...