Lewis v. Coupe

Sheldon, J.

The defendant’s contention as presented to us is that a verdict should have been ordered in his favor for the reasons, first, that the plaintiff was not employed or authorized to do the work which he was doing at the time that he was hurt, and second, because the business in which the plaintiff was employed was the business not of the defendant, but of one Angelí, and that both the defendant and the plaintiff and all other men employed in the business were merely salaried employees of Angelí. If either of these contentions was established, the action could not be maintained. But a verdict could not be ordered for the defendant upon either ground if there was any evidence upon which the jury could find that the defendant’s contention was not made out.

1. If the plaintiff on Monday, when he was injured, in going upon the ice run and beginning to work there in hoisting up the ice from the water, did this of his own motion or at the mere request of Knight, without authority from the defendant or from the defendant’s superintendent, then he was acting in excess of his duty, beyond the scope of his employment, as a mere volunteer, and cannot recover for any injury that resulted from his having undertaken work that he was not employed or expected to do. Aziz v. Atlantic Cotton Mills, 189 Mass. 156. But there was evidence that when the plaintiff first began to work for the defendant the defendant himself directed Knight to drive the horses and to put the plaintiff at work on the ice run, and that the change was made accordingly. Knight, to be sure, testified that this was to last until the horses had quieted down; but Monast and Butler gave no such limitation to the order, but stated that the defendant simply spoke of the nervousness or fright of the horses as the reason for his order. Moreover, upon the defendant’s own testimony it could have been found that Joran’s power of control and management of all the work and of the men engaged in it was full and complete, and there was testimony that Joran frequently saw the plaintiff at work on the ice run before the accident and on that occasion, and expressed no dissatisfaction. Indeed, Joran himself so testified. He added that the change, meaning, we suppose, such a change as was made between Knight and the plaintiff, was made quite often, and also that the change was perfectly satisfactory to him, and that when Knight left his position on the run and came down to drive the horses, it was perfectly proper for the plaintiff to take hold of the grapple, and that it was perfectly agreeable to him, Joran, that the plaintiff should do so. It is plain that the jury had a right to find that what the plaintiff did was done, if not in accordance with a direction given by the defendant, yet with the cognizance and approval of the defendant’s superintendent, who had as to this matter full authority to represent the defendant himself. Saures v. Stevens Manuf. Co. 196 Mass. 543, 548. Byrne v. Learnard, 191 Mass. 269, 275. Manning v. Excelsior Laundry Co. 189 Mass. 231, 233.

2. The defendant’s second contention rests upon his own testimony that in 1897 he had transferred to Angelí all his property for the benefit of his creditors, that this assignment was still in full force and effect, that it covered all the property used in this ice business and the business itself, and that the defendant was merely in the employ of Angelí upon a salary. But the jury were not bound to believe this testimony, even though it was uncontradicted. Lindenbaum v. New York, New Haven, & Hartford Railroad, 197 Mass. 314. Bearse v. Mabie, 198 Mass. 451, 456. Stouffer v. Curtis, 198 Mass. 560, 562. And apart from this, from the defendant’s own testimony upon cross-examination, it well might be found that he was in independent charge of this business, and was himself the employer of all the people who were engaged in it. In Hanlon v. Thompson, 167 Mass. 190, relied on by the defendant, the question who was the employer of the plaintiff was submitted to the jury.

3. The judge was not required to strike out the answer given by Joran that “ it was a proper thing, supposed to be the thing for him [the plaintiff] to take hold of the grap.” This was not strictly responsive to the question; but it was given upon cross-examination ; it was germane to the subject then being inquired about; it was itself competent. It went to show the plaintiff’s duties and the scope of the plaintiff’s employment, and confirmed the evidence of the witness’s approval of the plaintiff’s conduct. In view of the testimony which the defendant had given as- to this witness’s authority and power of control, this was material evidence, and the judge was not bound to strike it out.

4. It has not been contended that there was not sufficient evidence to warrant findings that the plaintiff, though in the general employment of the elder Knight, was at the time of the accident in the service of the defendant, if the defendant was running the ice business; that the injury was due to negligence of the defendant in furnishing an unsafe chain; and that the plaintiff was himself in the exercise of due care, and had not assumed the risk of the accident by which he was injured. The exception to the refusal of the judge to strike out the plaintiff’s evidence as to what the younger Knight told him about the defendant’s direction to change work has not been argued, and we treat it as waived.

j'Exceptions overruled.