Dwyer v. Hearst Corp.

• Decision Date: 21 February 1975
• Citation: 3 Mass.App.Ct. 76,323 N.E.2d 738
• Parties: James DWYER v. The HEARST CORPORATION.
• Court: Appeals Court of Massachusetts

Page 738

323 N.E.2d 738

3 Mass.App.Ct. 76

James DWYER v. The HEARST CORPORATION.

Appeals Court of Massachusetts, Suffolk.

Argued Feb. 21, 1974.

Decided Feb. 21, 1975.

Francis X. Kiley, Boston, for defendant.

Joseph W. MacDonald, Cohasset, for plaintiff.

Before ROSE, GOODMAN and GRANT, JJ.

GOODMAN, Justice.

The plaintiff initiated this action in the Superior Court; the declaration is in two counts, one against the defendant The Hearst Corporation (Hearst) and one against DeMarco, an employee of Hearst. Each count alleges that the plaintiff sustained personal injuries as a result of an assault upon him by the employee. The case was transferred to the Municipal Court of the City of Boston (Municipal Court) in accordance with G.L. c. 231, § 102C, where a trial resulted in findings for the plaintiff against Hearst and against DeMarco, each in the amount of $20,570. Hearst appealed the finding against it to the Appellate Division of the Municipal Court ¹, which ordered that the finding be vacated and that a finding be entered for Hearst on the count against it.

The plaintiff then retransferred the case to the Superior Court, where a jury trial resulted in a verdict against Hearst in the amount of $5,000. Both the plaintiff and Hearst filed bills of exceptions. See Consolo v. Massachusetts Bay Transp. Authy., --- Mass.App. ---, --- - --- ^a, 296 N.E.2d 718 (1973). The plaintiff's amended substitute outline bill of exceptions challenges the exclusion in the Superior Court of the finding against DeMarco by the Municipal Court. Hearst's bill of exceptions raises the issue whether its motion for a directed verdict should have been granted.

1. The plaintiff's exceptions. At the trial in the Superior Court, in which DeMarco did not participate, the trial judge excluded the finding against DeMarco in the sum of $20,570, which was offered by the plaintiff against Hearst. The trial judge said, 'The only case that is being tried before the jury is Count 2 against The Hearst Publications. Count 1, which was against DeMarco, is not before the jury. . . .' ²

The plaintiff argues that the admission of the finding was required by G.L. c. 231, § 102C. ³ We do not so read the statute. Section 102C provides that 'the Municipal Court decision has prima facie effect only at a Superior Court retrial of the same case' (emphasis in original). Adams, Harkness & Hill, Inc. v. Northeast Realty Corp., --- Mass. ---, --- ^b, 281 N.E.2d 262, 265 (1972). What is made admissible as prima facie evidence are the decision of and the damages assessed by the Municipal Court when offered in '(t)he action . . . thereafter . . . tried in the superior court.' G.L. c. 231, § 102C (last par.). But the action tried in the Superior Court was the count against Hearst, not the count against DeMarco. That the declaration also contained a count against DeMarco is irrelevant. The count against DeMarco was for a separate cause of action. Farquhar v. Farquhar, 194 Mass. 400, 404, 80 N.E. 654 (1907). Kenney v. Boston & Maine R.R., 301 Mass. 271, 274, 17 N.E.2d 103 (1938). See Mottla, Civil Practice, § 288, pp. 267--268 (1962). Similarly, in Petruzziello v. Borselli, 321 Mass. 749, 72 N.E.2d 430 (1947), an auditor's report which found liability against the operator of an automobile was not admitted against the owner, though the separate cases in tort against the owner and operator were heard together by the auditor and thereafter tried together. ⁴

2. The defendant's exceptions. The motion for a directed verdict was properly denied. From the evidence as summarized in the bill of exceptions, taking the evidence favorable to the plaintiff, the jury could have found that on the day of the incident DeMarco was employed by the defendant as a truck driver to deliver newspapers. At about 5:00 P.M. he was returning from making deliveries on the North Shore and was driving the truck on Salem Street in the North End. The plaintiff had parked his truck on Salem Street while delivering merchandise and was blocking DeMarco's way. DeMarco (as set out in the bill of exceptions) 'swore and cursed at Dwyer, asking him to move his truck; Dwyer replied he'd only be a couple of minutes and bent over to pick up his merchandise, the driver of the other truck (DeMarco) struck him (the plaintiff) on the jaw. . . . After the altercation DeMarco went to gas up, and then back to the office.'

On this evidence the jury could have found 'that the employee's assault was in response to the plaintiff's conduct which was presently interfering with the employee's ability to successfuly perform his duties.' Miller v. Federated Dept. Stores, Inc., --- Mass. ---, --- ^c, 304 N.E.2d 573, 580 (1973). This case is the most recent examination by the Supreme Judicial Court of the liability of an employer for an assault committed by its employee whose work does not normally require the use of force. The court went on to say, 'This interference may be in the form of an affirmative attempt to prevent an employee from carrying out his assignments, as in the Levi (Levi v. Brooks, 121 Mass. 501 (1877)) and Rego (Rego v. Thomas Bros. Corp., 340 Mass. 334, 164 N.E.2d 144 (1960)) cases, or in the failure to do acts necessary to enable the employee to begin or continue his assignments, as in the Hobart case (Hobart v. Cavanaugh, 353 Mass. 51, 228 N.E.2d 439 (1967)). Assaults arising in either of these contexts constitute acts committed within the scope of employment, in that they stem from and directly relate to the frustration of the ability to perform on the assignments for which the employee is presently responsible.' Indeed, the Hobart case is quite similar on its facts. There, as here, the assault was by an employee truck driver in response to the plaintiff's conduct which delayed refueling a truck. See Howe v. Newmarch, 12 Allen 49, 56 (1866).

The defendant contends that it is not liable because DeMarco was on his way to supper. However, we need not pass on whether this would absolve the defendant in this case. The testimony of DeMarco that he never went home for supper that evening because he spent his supper time in the altercation, even if believed, is merely some indication of his intent which is not dispositive. Miller v. Federated Dept. Stores, Inc., --- Mass. at --- - --- ^d, 304 N.E.2d 573. The jury could weigh it in the light of his testimony that he went to 'gas up' after the assault. It was also for the jury to determine the significance to be given the testimony of the defendant's superintendent of delivery that after making deliveries on the North Shore, 'DeMarco was given permission to go home for his supper,...