Barney v. Magenis

De Courcy, J. The plaintiff has a verdict in an action brought — 271 — to recover damages for the conscious suffering and death of her intestate, Dr. Willis O. Barney. It is admitted in the defendant’s bill of exceptions that there was evidence of the intestate’s due care, and (independently of any evidence excepted to) that his injury and death were due to the negligence of Herbert H. Shuman in operating an automobile owned by the defendant. 1. It is argued that the motion for a directed verdict should have been granted, on the ground that the evidence did not warrant a finding that Shuman was engaged in the business of the defendant at the time of the accident. It was undisputed that he was in her general employ, and that on the morning of the accident he left her home at Dedham with instructions to go to three florists in Boston and get flowers and take them to a lawn party in Newton. The route he should take was not prescribed. The accident happened on Washington Street, near the corner of Bennett Street. Shuman was called by the plaintiff and testified that he drove into Boston by way of Beacon Street; that he went from Dartmouth Street to Tremont and turned off Tremont at Union Park Street where he had a room at number 25; that there he got his mail, and later changed his linen (which he had obtained elsewhere in the meantime). He said that he then returned to Tremont Street, went thence by way of Broadway to Washington Street, and was coming toward the centre of Bostop when he reached Bennett Street, where the accident occurred. He further said that he intended to leave Washington Street at Summer Street, to go to Long Wharf. In short, his claim was that he had deviated from his route for purposes of his own. It is evident from his testimony that Shuman as a witness was hostile to the plaintiff. In view of that, and his final admission that he lied to the highway commission officer, the jury might well scrutinize a story which could easily be invented by a culpable chauffeur, and prove difficult to contradict. It is significant that the accident happened at a place which is on the direct route between the defendant’s home in Dedham and the flower shops to which Shuman was instructed to go. Assuming that he used the route to Boston by way of Beacon Street, when he deviated therefrom to go to his room on Union Park Street he was more than a mile from the florists, while he was only half a mile therefrom at the place where the accident happened. The defendant — 272 — knew he had a room in Boston, and that he did not have his laundry done at her house. We should be slow to rule as matter of law that the jury could not infer from all the circumstances relating to Shuman’s employment that he had the implied assent of the defendant to go to his room for clean linen before attending the lawn party. Reynolds v. Denholm, 213 Mass. 576. Lewandowski v. Cohen, 237 Mass. 125. But even if'the jury believed that there had been an unauthorized deviation they could find that it came to an end prior to this accident, and that Shuman had resumed his regular course to reach the flower shops in the performance of the defendant’s business. Donahue v. Vorenberg, 227 Mass. 1. Mathewson v. Edison Electric Illuminating Co. of Boston, 232 Mass. 576, 581, and cases cited. They might well discredit his statement that he intended to go to Long Wharf, — where in fact he did not go. Finally, he testified, when first called as a witness, that what he said to Mr. McGonagle, of the Massachusetts Highway Commission, with reference to the accident was true; and that he told Mc-Gonagle “I was on my way to several flower stores, including Penn’s, Cassidy’s, and Galvin’s.” Even though he later said he lied to McGonagle, the jury could accept such part of his testimony as they believed to be true. Hankinson v. Lynn Gas & Electric Co. 175 Mass. 271. The motion for a directed verdict was denied rightly. 2. Exceptions relating to evidence: The judge refused to strike out the following testimony of the intestate’s mother: Q. “Did he [the intestate] say anything about how fast the car was going? ” A. “He said, ‘It dragged me between twenty-five and thirty feet. It must have been going all of thirty or thirty-five miles an hour.’ ” The first portion of the answer plainly was admissible under the statute (G. L. c. 233, § 65). And with some hesitation, we think the last portion may be regarded as only an emphatic form of stating that the automobile was moving fully thirty or thirty-five miles an hour; that the intestate was expressing a fact derived from the exercise of his own senses, and not merely an opinion or guess. Slotofski v. Boston Elevated Railway, 215 Mass. 318. Johnson v. Foster, 221 Mass. 248. Little v. Massachusetts Northeastern Street Railway, 223 Mass. 501, 504. Eldridge v. Barton, 232 Mass. 183, 187. The testimony given by the plaintiff, that — 273 — her intestate told her that Shuman had said to him "he was on his way to get flowers for the woman he worked for and was in a hurry,” was competent to contradict Shuman, who had denied making this statement. The objection that the chauffeur had no authority to speak for his employer after the accident was not raised at the trial, and is not now open. 3. The charge: The requests to which the defendant was entitled were given, most of them in terms. The real issues in controversy were called to the attention of the jury fully and with discrimination. Exception was taken “To so much of the charge as permitted the jury to base damages upon mental solicitude, anxiety and anguish ... to consider . . . thoughts for friends and the immediate family.” As we construe the language used by the judge in instructing the jury, the mental suffering which he directed them to consider was that connected with and growing out of the physical injury. He stated explicitly: “The law recognizes as a legitimate subject of recovery the anguish of mind that a man may go through, accompanying an injury.” The specification of the thoughts and feelings producing such mental suffering was perhaps unnecessarily detailed, but it cannot be said to be erroneous in law. Sullivan v. Old Colony Street Railway, 197 Mass. 512, 516. Exceptions overruled,.