Donahue v. Vorenberg

• Decision Date: 24 May 1917
• Citation: 227 Mass. 1,116 N.E. 246
• Parties: DONAHUE v. VORENBERG. MORRISSEY v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

227 Mass. 1

116 N.E. 246

DONAHUE

v.VORENBERG.

MORRISSEY

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

May 24, 1917.

Exceptions from Superior Court, Suffolk County; Hugo A. Dubuque, Judge.

Separate actions by Mary Donahue and Mary M. Morrissey against Simon Vorenberg. Judgment for plaintiffs, and defendant excepts. Exceptions overruled.

1. MASTER AND SERVANT k332(2)-INJURY TO THIRD PERSONS-SCOPE OF EMPLOYMENT-QUESTION OF FACT.

In an action for wrongful death caused by being struck by an automobile driven by defendant's employé, where the employé, although following the physical route as directed by the employer, was carrying two passengers on his own account which he intended to leave on the way, evidence held to make it a question of fact for the jury whether the driver was engaged at the time of the accident on the master's business.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. s 1275.]

2. MASTER AND SERVANT k302(6)-INJURIES TO THIRD PERSON-SCOPE OF EMPLOYMENT-PRESUMPTION OF DUTIES.

A driver of an automobile, who has abandoned his duties, although still in charge of the machine, may resume such duties and make his master liable for injuries occasioned by him without an implied assent on his employer's part.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. s 1220.]

3. MASTER AND SERVANT k332(4)-INJURIES TO THIRD PERSON-INSTRUCTIONS.

In an action for wrongful death in an automobile accident alleged to have been caused by the driver after having abandoned his master's business, an instruction leaving the question of abandonment of his master's business to the jury held not misleading as instructing the jury that, if the driver had resumed the physical route directed by his master, he had resumed his duties for him, but omitting the question of intent as to which other instructions had been given.

[Ed. Note.-For other cases, see Master and Servant, s 1277.]

Daniel H. Coakley and C. J. Muldoon, Jr., both of Boston, for plaintiffs.

Sawyer, Hardy, Stone & Morrison, of Boston, for defendant.

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 up 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 at 9 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. The Charlesgate Garage, in Boston, 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 employment 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, Perkins 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 Street 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 9 o'clock in the evening he (Malloy) abandoned his duties as the defendant's chauffeur and never undertook to resume them.

[1] 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...