Hobart v. Cavanaugh

• Decision Date: 29 June 1967
• Citation: Hobart v. Cavanaugh, 228 N.E.2d 439, 353 Mass. 51 (Mass. 1967)
• Parties: Earl W. HOBART v. Paul Frederick CAVANAUGH.
• Court: Supreme Judicial Court of Massachusetts

Page 439

228 N.E.2d 439

353 Mass. 51

Earl W. HOBART v. Paul Frederick CAVANAUGH.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 1, 1967.

Decided June 29, 1967.

Daniel J. Johnedis, Boston, for plaintiff.

Michael T. Prendergast, Boston, for defendant.

Before WILKINS, C.J., and SPALDING, KIRK, SPIEGEL and REARDON, JJ.

KIRK, Justice.

This action of tort for assault and battery is before us on the plaintiff's exception to the allowance of the defendant's motion that a verdict be entered for him under leave reserved. G.L. c. 231, § 120.

The defendant (Cavanaugh) conducted a trucking business. For several years he kept his trucks at a garage operated by the plaintiff (Hobart) in Reading. Cavanaugh employed one Blickenstaff as a truck driver. Blickenstaff's normal duties required him to truck tannery products from Peabody or Lynn to Woburn. He worked on a part time basis, from three to eight hours a day. Blickenstaff customarily reported for work at Hobart's garage five days a week. The hour varied. The people in Peabody and Lynn would notify Blickenstaff when the loads would be ready the next day, and he, on the next day, would get a truck at Hobart's and pick up the loads whenever they were ready.

The assault took place on August 29, 1962. Hobart was at work at his usual hour, 7 A.M. At seven twenty, while Hobart was putting gasoline into Cavanaugh's trucks, Blickenstaff drove his car into the yard of the garage, parked it, and walked toward Hobart until he was twenty feet from him. Blickenstaff asked Hobart 'why the hell he didn't have the truck filled up, hadn't Cavanaugh told him to keep those trucks filled.' Hobart told Blickenstaff that 'he had an awful lot of mouth for a fellow that wasn't paying the bills.' He did not say this in a nice gentle manner; he looked at Blickenstaff when he made this remark. At that moment, the gasoline started to bubble out of the tank; Hobart looked down at it, and before he knew what happened, he was struck on the jaw and toppled over. Up to that moment only Hobart had handled the truck. He had driven it to the gasoline pump. Later in the morning, Hobart found that he could not bite; his jaw had been broken by the blow.

The question presented is whether this evidence, viewed in its aspect most favorable to Hobart and drawing from it such inferences as are reasonably permissible, was sufficient to support the finding implicit in the jury's verdict that Blickenstaff at the time of the assault...