In re Squire

• Decision Date: 02 January 1890
• Citation: 23 N.E. 323,150 Mass. 484
• Parties: In re SQUIRE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

150 Mass. 484

23 N.E. 323

In re SQUIRE et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 2, 1890.

Petition to prove bill of exceptions.

Cornelius McCart commenced an action of tort, in the superior court of Middlesex county, under chapter 270 of the Statutes of the year 1887, for an injury sustained by reason of the negligence of one Wilmot H. White, who was alleged to be a superintendent in the service of the defendants, John P. Squire, Frank O. Squire, and Fred. F. Squire. Evidence was introduced tending to show that White was hired and required to perform, and that he did perform, habitually, daily manual labor, as one of a gang of workmen, including the plaintiff, in and about the manufacture of fertilizer material in the factory of the defendants. Evidence was also introduced tending to show that the belt of the drying-machine in the fertilizer room frequently came off, and had to be put on, and that White, on the 4th day of February, 1888, while putting on the belt with two other workmen, was negligent in throwing down the stick used for that purpose, in consequence of which negligence the plaintiff was injured, for which injury action was brought. Evidence was also introduced tending to show that White was foreman or boss in the fertilizer room. The defendants presented requests for instructions, the first and second of which were as follows: (1) “If the jury find that White was hired and required to perform habitually, and that he did perform habitually, daily manual labor as one of the gang of workmen, including the plaintiff, in the manufacture of the fertilizer material in the factory of the defendants, although he was a superintendent for some purposes, he is not a superintendent within the meaning of the statutes of the year 1887, chapter 270, and the plaintiff is not entitled to recover for an injury caused by or arising from the negligence of said White.” (2) “If the jury find that White was a superintendent for some purposes, and that he was also habitually engaged in daily manual labor while he was hired, and which he was hired and required to perform as one of the gang of workmen, including the plaintiff, in the manufacture of the fertilizer material in the factory of the defendants, and that White was negligent in an act of the ordinary manual labor in which he was engaged, White was not exercising superintendence, within the meaning of the provisions of the statute of the year 1887, chapter 270, and the plaintiff is not entitled to recover for an injury caused by or arising from said negligence.” The court gave the first ruling as requested, but with the following addition: “Gentlemen, you will understand what I have said to you with reference to this, and I give you this instruction with this addition: But you are to find, upon all the evidence before you, whether he was or was not a superintendent,-that is, whether he did or did not solely or principally exercise the duties of superintendence; and the fact that he performed manual labor every day, or upon occasion, in different parts of the department, does not prevent him exercising as his principal duty and being such a superintendent, as is contemplated by the statute.” The court gave the second ruling as requested, but with the following addition: “Gentlemen, I give you this instruction, with the instruction which I have already given you on this subject, and as defined or with the definition which I have already given you. You will understand from what I have already said that, if the...