3 Mass. App. Ct. 76

February 21, 1974 - February 21, 1975

Suffolk County


The provision of G. L. c. 231, Section 102C, that a District Court decision shall be prima facie evidence at a Superior Court retrial of the same case did not require admission of a District Court finding against a defendant on one count of a tort declaration in a Superior Court retrial of another count of the same declaration against a different defendant. [77-79]

In a tort action evidence that a truck driver employed by the defendant, on his way to refuel and eat supper after completing deliveries, struck the plaintiff because the plaintiff's truck was blocking the street, warranted a finding that the driver was acting within the scope of his employment at the time of the assault. [79-81]

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TORT. Writ in the Superior Court dated September 7, 1965.

Following transfer to the Municipal Court of the City of Boston and retransfer to the Superior Court the action was tried before Goldberg, J.

Francis X. Kiley for the defendant.

Joseph W. MacDonald for the plaintiff.

GOODMAN, J. The plaintiff initiated this action in the Superior Court; the declaration is in two counts, one against the defendant The Hearst Corporation (Hearst) and one against DeMarco, an employee of Hearst. Each count alleges that the plaintiff sustained personal injuries as a result of an assault upon him by the employee. The case was transferred to the Municipal Court of the City of Boston (Municipal Court) in accordance with G. L. c. 231, Section 102C, where a trial resulted in findings for the plaintiff against Hearst and against DeMarco, each in the amount of $20,570. Hearst appealed the finding against it to the Appellate Division of the Municipal Court, [Note 1] which ordered that the finding be vacated and that a finding be entered for Hearst on the count against it.

The plaintiff then retransferred the case to the Superior Court, where a jury trial resulted in a verdict against Hearst in the amount of $5,000. Both the plaintiff and Hearst filed bills of exceptions. See Consolo v. Massachusetts Bay Transp. Authy. 1 Mass. App. Ct. 338, 339-341 (1973). The plaintiff's amended substitute outline bill of exceptions challenges the exclusion in the Superior Court of the finding against DeMarco by the Municipal Court. Hearst's bill of exceptions raises the issue whether its motion for a directed verdict should have been granted.

1. The plaintiff's exceptions. At the trial in the Superior Court, in which DeMarco did not participate, the trial judge excluded the finding against DeMarco in the sum

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of $20,570, which was offered by the plaintiff against Hearst. The trial judge said, "The only case that is being tried before the jury is Count 2 against The Hearst Publications. Count 1, which was against DeMarco, is not before the jury. . . ." [Note 2]

The plaintiff argues that the admission of the finding was required by G. L. c. 231, Section 102C. [Note 3] We do not so read the statute. Section 102C provides that "the Municipal Court decision has prima facie effect only at a Superior Court retrial of the same case" (emphasis in original). Adams, Harkness & Hill, Inc. v. Northeast Realty Corp. 361 Mass. 552, 555 (1972). What is made admissible as prima facie evidence are the decision of and the damages assessed by the Municipal Court when offered in "[t]he action . . . thereafter . . . tried in the superior court." G. L. c. 231, Section 102C (last par.). But the action tried in the Superior Court was the count against Hearst, not the count against DeMarco. That the declaration also contained a count against DeMarco is irrelevant. The count against DeMarco was for a separate cause of action. Farquhar v. Farquhar, 194 Mass. 400, 404 (1907). Kenney v. Boston & Maine R.R. 301 Mass. 271, 274 (1938). See Mottla, Civil Practice, Section 288, pp. 267-268 (1962). Similarly, in Petruzziello v. Borselli, 321 Mass. 749 (1947), an auditor's report which found liability against the operator of an automobile was not admitted against the owner, though the separate

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cases in tort against the owner and operator were heard together by the auditor and thereafter tried together. [Note 4]

2. The defendant's exceptions. The motion for a directed verdict was properly denied. From the evidence as summarized in the bill of exceptions, taking the evidence favorable to the plaintiff, the jury could have found that on the day of the incident DeMarco was employed by the defendant as a truck driver to deliver newspapers. At about 5:00 P. M. he was returning from making deliveries on the North Shore and was driving the truck on Salem Street in the North End. The plaintiff had parked his truck on Salem Street while delivering merchandise and was blocking DeMarco's way. DeMarco (as set out in the bill of exceptions) "swore and cursed at Dwyer, asking him to move his truck; Dwyer replied he'd only be a couple of minutes and bent over to pick up his merchandise, the driver of the other truck [DeMarco] struck him (the plaintiff) on the jaw. . . . After the altercation DeMarco went to gas up, and then back to the office."

On this evidence the jury could have found "that the employee's assault was in response to the plaintiff's conduct which was presently interfering with the employee's ability to perform his duties successfully." Miller v. Federated Dept. Stores, Inc. 364 Mass. 340, 350 (1973). This case is the most recent examination by the Supreme Judicial Court of the liability of an employer for an assault committed by its employee whose work does not normally require the use of force. The court went on to say, "This interference may be in the form of an affirmative attempt to prevent an employee from carrying out his assignments, as in the Levi [Levi v. Brooks, 121 Mass. 501 (1877)] and Rego [Rego v. Thomas Bros. Corp. 340 Mass. 334 (1960)] cases, or in the failure to do acts necessary to enable the employee to begin or continue his assignments, as in the Hobart case [Hobart v. Cavanaugh, 353 Mass. 51 (1967)]. Assaults arising in either of these contexts constitute acts

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committed within the scope of employment, in that they stem from and directly relate to the frustration of the ability to perform on the assignments for which the employee is presently responsible." Indeed, the Hobart case is quite similar on its facts. There, as here, the assault was by an employee truck driver in response to the plaintiff's conduct which delayed refueling a truck. See Howe v. Newmarch, 12 Allen 49, 56 (1866).

The defendant contends that it is not liable because DeMarco was on his way to supper. However, we need not pass on whether this would absolve the defendant in this case. The testimony of DeMarco that he never went home for supper that evening because he spent his supper time in the altercation, even if believed, is merely some indication of his intent which is not dispositive. Miller v. Federated Dept. Stores, Inc. 364 Mass. at 348-349. The jury could weigh it in the light of his testimony that he went to "gas up" after the assault. It was also for the jury to determine the significance to be given the testimony of the defendant's superintendent of delivery that after making deliveries on the North Shore, "DeMarco was given permission to go home for his supper, then gas up his truck and return for another local delivery." The jury, if they believed this at all, could understand it as a description of a general pattern which admitted of variation.

The defendant's bill of exceptions is meager. However, the transcript of the trial was submitted to us in connection with the plaintiff's outline bill of exceptions. Rule 1:22 (4) of the Appeals Court, 1 Mass. App. Ct. 893 (1972). See Goldman v. Mahony, 354 Mass. 705, 711-712 (1968). We are free to examine it in connection with the entire case. See American Discount Corp. v. Kaitz, 348 Mass. 706, 708-709 (1965), citing G. L. c. 231, Section 135 (3d par.), as amended through St. 1941, c. 187; Kennedy v. U-Haul Co. Inc. 360 Mass. 71, 72 (1971).

The transcript buttresses the result we have reached. There is testimony by DeMarco that he "was going to the garage to gas up and then go home to eat," and there is corroboration in the testimony of the superintendent of

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delivery. The plaintiff also testified that DeMarco told him, "Come on, move your . . . truck" and said that he was in a hurry because he had work to do. The jury could thus rationally have found for the plaintiff.

Plaintiff's exceptions overruled.

Defendant's exceptions overruled.


[Note 1] DeMarco, so far as appears, took no further action at any stage of the proceedings.

[Note 2] Also, the court in its charge stated, without objection: "In the Declaration which you will have there are two counts: Count 1, which is against DeMarco, and a Count 2 against DeMarco's alleged employer, Hearst Publications. Now, Count 1 against DeMarco is not before you. . . . What is before you now is simply Count 2, the action against The Hearst Publications. . . ." We need not decide the exact status of the count against DeMarco.

[Note 3] That statute reads in pertinent part (last par.): "The action shall thereafter be tried in the superior court. The decision of, and the amount of the damages assessed, if any, by a district court shall be prima facie evidence upon such matters as are put in issue by the pleadings, and no other findings of such court shall at any time be admissible as evidence or become part of the pleadings. . . ."

[Note 4] The plaintiff does not argue, and we need not deal with the applicability of the principles governing estoppel and res judicata.