Rego v. Thomas Bros. Corp.

• Decision Date: 03 February 1960
• Citation: 340 Mass. 334,164 N.E.2d 144
• Parties: Manuel REGO v. THOMAS BROTHERS CORPORATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 144

164 N.E.2d 144

340 Mass. 334

Manuel REGO v.THOMAS BROTHERS CORPORATION.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Dec. 9, 1959.

Decided Feb. 3, 1960.

William F. Hallisey, Brockton, for defendant.

Gerald P. Walsh, New Bedford, for plaintiff.

Before WILKINS, C. J., and SPALDING, COUNIHAN, WHITTEMORE, and CUTTER, JJ.

COUNIHAN, Justice.

In this action of tort the plaintiff seeks to recover damages for personal injuries sustained on May 20, 1957, as the result of an altercation between the plaintiff and one Clark, an employee of the defendant.The action comes here upon the exception of the defendant to the denial of its motion for a directed verdict.There was no error.

The evidence, in its aspects most favorable to the plaintiff, showed that Clark was employed by the defendant as superintendent of construction work on a public highway in the city of New Bedford, known as Phillips Road.During the course of the work several large boulders had rolled onto land of a Mrs. Sylvia abutting the highway.She was a niece of the plaintiff who lived with her in a house on this land.

On the morning of the day of the assault Mrs. Sylvia met Clark and ordered him to remove the boulders from this land.Upon his refusal to do so, she complained to the State engineer in charge of the job.He thereupon ordered Clark to remove the boulders and carry them off to a dump.As a result Clark returned to Mrs. Sylvia's land with two other employees of the defendant and began the work of removing the boulders.

Mrs. Sylvia appeared and told Clark that she had changed her mind and to stop.While she and Clark were arguing about it, the plaintiff came onto the land and ran up to Clark and in a loud voice told Clark to leave the boulders where they were.An altercation followed during which Clark struck the plaintiff two severe blows on his face breaking his jaw.Clark was forty-eight years old, about six feet in height, and weighed one hundred ninety pounds.The plaintiff was sixty-five years old, about five feet five inches in height, and weighed one hundred twenty-two pounds.The plaintiff testified that he never struck or attempted to strike Clark.

It was early said in Levi v. Brooks, 121 Mass. 501, at page 505, 'The test of the liability of the master is, that the act of the servant is done in the course of doing the master's work, and for the purpose of accomplishing it.If so done it is the act of the master, and he is responsible 'whether...