Schlehuber v. American Express Co.

• Decision Date: 25 May 1918
• Parties: SCHLEHUBER v. AMERICAN EXPRESS CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

230 Mass. 347

119 N.E. 828

SCHLEHUBER

v.AMERICAN EXPRESS CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 25, 1918.

Exceptions from Superior Court, Suffolk County; W. P. Hall, Judge.

Action of tort by Andrew Schlehuber, administrator, for conscious suffering and death of his decedent, against the American Express Company. Verdict for plaintiff, and defendant excepts. Exceptions overruled.

J. W. & T. F. McAnarney, of Boston, for plaintiff.

Pinkham, Chittenden & West and Austin M. Pinkham, all of Boston, for defendant.

De COURCY, J.

The plaintiff has recovered a verdict on the count at common law, for the conscious suffering of his intestate, Joseph Schlehuber. The only question before us is whether the trial judge should have directed a verdict for the defendant.

The intestate was in the employ of the defendant July 3, 1915. The only evidence that he sustained an injury on that day in the course of his work consisted of declarations made by him to others, and introduced in evidence under R. L. c. 175, § 66. But as the jury believed this testimony, we must assume that the declarations were made, and were true. The defendant was not insured under the Workmen's Compensation Act; consequently it was no defense to the plaintiff's case the Joseph Schlehuber himself was negligent, or that he assumed the risk, or that the injury was caused by the negligence of a fellow employé. St. 1911, c. 751, pt. 1, § 1.

According to the declarations of the deceased, he was working for the defendant at the North Station in Boston, and with another man was lifting a barrel of fish from a truck into a car, when the barrel in some way was pushed against him, and he sustained injuries which later proved to be fatal. It is strongly urged by the defendant that, even accepting the truth of said declarations, there was no evidence that the fellow workman was an employé of the defendant, or was acting within the scope of his employment, or that he was negligent. The evidence bearing on each of these elements was meager; but it was enough to be submitted to the jury. For instance, the witness Ochs testified that Joseph in telling how the accident happened,said:

‘* * * ‘There was a fellow’ * * * ‘that does lumping around there’; * * * ‘he helped me put on a barrel of fish’ * * * ‘from a truck onto the car, * * * the day before the Fourth. And in lifting up the barrel, he took hold one side and I took hold of the other. He got it practically up to the entrance, to the door of the car, and I told him to wait a minute until I got a good hold to give it a high boost. In fact, he lifted before I did and threw the barrel over onto me. It went down, and I struck up against the truck, struck me in the back here. * * *’'

He said to Thomas G. Connolly, his attorney, that:

‘He had been employed at that time by the American Express Company, and also working with him on that day at the time of the accident was another man. He couldn't-he never had learned the name of the other man. He said the other man didn't work steadily, he worked...