Hobart v. Cavanaugh

Decision Date29 June 1967
Citation353 Mass. 51,228 N.E.2d 439
PartiesEarl W. HOBART v. Paul Frederick CAVANAUGH.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Daniel J. Johnedis, Boston, for plaintiff.

Michael T. Prendergast, Boston, for defendant.


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...

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9 cases
  • McIntyre v. U.S., Civil Action No. 01-CV-10408-RCL.
    • United States
    • U.S. District Court — District of Massachusetts
    • 5 Septiembre 2006
    ...a gasoline station attendant by a trucker after a dispute over whether the attendant was timely fueling the trucks, Hobart v. Cavanaugh, 353 Mass. 51, 228 N.E.2d 439 (1967); a bartender's beating and kicking of a patron when the patron insulted another bartender, Orasz v. Colonial Tavern, I......
  • Estate of Davis ex rel. Davis v. U.S., CIV.A. 02-11911-RCL.
    • United States
    • U.S. District Court — District of Massachusetts
    • 15 Octubre 2004
    ...baseball at heckling crowd, thereby injuring the plaintiff, was acting within the scope of his employment); Hobart v. Cavanaugh, 353 Mass. 51, 52-53, 228 N.E.2d 439 (1967) (employee's assault and battery of garage owner who had failed to fill employer's trucks with gasoline was within the s......
  • Berry v. Commerce Ins. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 25 Octubre 2021
    ...response to picket demonstration, which interfered with employee's ability to deliver beer he was transporting); Hobart v. Cavanaugh, 353 Mass. 51, 53, 228 N.E.2d 439 (1967) (battery was in response to employee's frustration with victim's delay in putting gasoline in his truck, impeding his......
  • Miller v. Federated Dept. Stores, Inc.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 4 Diciembre 1973
    ...court holding the employer liable, particularly Rego v. Thomas Bros. Corp. 340 Mass. 334, 164 N.E.2d 144 (1960), and Hobart v. Cavanaugh, 353 Mass. 51, 228 N.E.2d 439 (1967), and assert that '(i)n fact . . . the instant case is indistinguishable from (the) Rego and Hobart (cases).' We We su......
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