35 Mass. App. Ct. 30

January 11, 1993 - July 23, 1993

Worcester County


In the case of a State police officer injured when struck by a motor vehicle being negligently operated by a construction worker, who was enroute to his job site solely to obtain his paycheck on a day when the employer had canceled work on the site, there was no evidence from which the jury could reasonably conclude that the employer's purposes had impelled the worker's travel so as to render the employer vicariously liable on the theory of respondent superior. [32-35]

CIVIL ACTION commenced in the Superior Court Department on March 13, 1990.

The case was tried before John C. Cratsley, J.

Philip J. MacCarthy for the defendant.

John F. Keenan for the plaintiffs.

KASS, J. At around 3:00 P.M. on August 11, 1989, the plaintiff Kevin J. Kelly, a State trooper, was writing out a ticket to a motorist whom he had stopped for speeding in Marlborough. Kelly's police cruiser and the motorist's car were stopped in the southbound breakdown lane of highway Route 495. As Kelly was returning to his cruiser a southbound vehicle driven by Sergio Peluffo unaccountably veered to the right off the road and struck the unfortunate State trooper. Peluffo, it turned out, had fallen asleep at the wheel.

The ensuing action by which Kelly sought compensation for his injuries resulted in an aggregate jury verdict of

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$2,000,000 [Note 2] against Peluffo and his employer, Middlesex Corporation (Middlesex). [Note 3] Peluffo was driving from his home in Leominster to Attleboro to pick up a paycheck when the accident occurred. At the close of the plaintiff's evidence and at the close of all the evidence, Middlesex moved for a directed verdict, and its motion in each instance was denied. See Mass.R.Civ.P. 50(a), 365 Mass. 814 (1974). A timely motion for judgment notwithstanding the verdict (see Mass.R.Civ.P. 50[b], 365 Mass. 814 [1974]) was also denied. We think the evidence cannot support a finding by the jury that Peluffo was acting within the scope of his employment by Middlesex when the accident happened; the motion for judgment notwithstanding the verdict should have been allowed; and we reverse the judgment against Middlesex. [Note 4]

The day of the accident was a Friday. Peluffo had arrived at the job site in Attleboro around 7:00 A.M., but rain had begun to fall. Approximately at 9:00 A.M., Peter J. McLellan, Middlesex's job superintendant, shut the job down for the balance of the day and sent the work force home. Paychecks were not yet available. They were normally delivered to the Attleboro job site at 3 to 3:30 P.M. on Fridays. McLellan told the workers who were leaving that they could, if they wished, pick up their checks at the trailer office on the job site at the usual midafternoon time or receive them when they came to work the following Monday. Peluffo went home to Leominster and had some repair work done on his car. He decided to pick up his paycheck so that he could pay some bills, and it was on the trip back to Attleboro that the accident involving the plaintiff Kelly occurred.

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In order to recover from Middlesex on the basis of vicarious liability established through the idea of respondeat superior, it was the plaintiff's burden to prove that Peluffo was acting on behalf of or upon the direction of his employer, Middlesex, when the accident occurred, i.e., that he was acting in the scope of his employment. [Note 5] See Wang Labs., Inc. v. Business Incentives, Inc., 398 Mass. 854, 859 (1986). An employee's tortious conduct may come under the "scope of employment" umbrella if the employee's tortious activity is driven, at least in part, by a purpose to serve the employer. Ibid. See also Pinshaw v. Metropolitan Dist. Commn., 402 Mass. 687, 694 (1988); Restatement (Second) of Agency Section 228 (1958). If the employee's acts are driven by purely personal purposes, unconnected in any way with the employer's interests, then the employee is ordinarily acting outside the scope of his employment. Pinshaw v. Metropolitan Dist. Commn., supra at 694-695. Prosser & Keeton, Torts 506 (5th ed. 1984).

It has long been settled -- as the plaintiff recognizes -- that travel back and forth from home to a fixed place of employment is not ordinarily regarded as incident to employment and the employer is not answerable for an employee's torts in the course of such activity. Chernick's Case, 286 Mass. 168, 172 (1934). Smith's Case, 326 Mass. 160, 162 (1950). Gwaltney's Case, 355 Mass. 333, 335 (1969). This is the "coming and going" rule. See Wormstead v. Town Manager of Saugus, 366 Mass. 659, 666 (1975). The limiting case occurs when the purpose of travel between the place of residence and place of business is a mission to further the purposes of the employer, such as when an employee is directed to come to a particular company meeting, as in Caron's Case, 351 Mass. 406, 409-410 (1966). See also Wormstead v. Town Manager of Saugus, supra at 666, involving

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a police officer travelling during his duty hours to his home for lunch; and Swasey's Case, 8 Mass. App. Ct. 489, 493-494 (1979), where the nature of the employment involved dispatching the employee to distant places, in that instance to Poughkeepsie, New York.

With those principles in mind, we consider whether, without weighing the credibility of witnesses or the weight of the evidence, there was evidence from which the jury could reasonably draw the inference that, at the time of the accident, the employer's purposes had impelled Peluffo's travel. Poirier v. Plymouth, 374 Mass. 206, 212 (1978). McEvoy Travel Bureau, Inc. v. Norton Co., 408 Mass. 704, 706 n. 3 (1990). Rubel v. Hayden, Harding & Buchanan, Inc., 15 Mass. App. Ct. 252, 254 (1983). International Totalizing Sys., Inc. v. PepsiCo, Inc., 29 Mass. App. Ct. 424, 429 (1990).

McClellan, the job superintendent, had testified that the told his men when he sent them home that if they wanted their paychecks they could come back and get them at around 3 P.M. or receive them on Monday when they were back on the job. Peluffo's testimony at trial was consistent, i.e., he said that he had the option to come back for his check or wait until Monday. What the plaintiff relies on as evidence that Peluffo was directed to return for his check is a portion of testimony Peluffo gave at a pretrial deposition, which was read into the record. In the first of the extracts which we reproduce, the questioner is the plaintiff's lawyer, Mr. Keenan:

Q: "And were you then told by one of your bosses to go home?"

A: "Yeah, I go back and pick up my check, that's what he told me."

Q: "Were you told to come back to get your check?"

A: "Yeah."

Q: "Who told you to come back and get your check?"

A: "Peter [McClellan].". . .

Q: "And what did he tell you?"

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A: "I had to come by later to pick up my check. This is what he told me. If I wanted my check I had to go later."

In isolation, the excerpted deposition testimony could possibly be stretched to a direction to Peluffo to return for his check. Peluffo, who lacked English language skills (he was a native of Uruguay), was not asked by plaintiff's counsel whether he was given the alternative of picking up his check on the next work day, Monday. Later in the deposition, however, he was asked that follow-up question by one of the defense lawyers:

Q: "On this particular day they closed the job down?"

A: "Yeah."

Q: "In the morning?"

A: "Yeah."

Q: "And if you wanted your money that day, you were to come back for it?"

A: "Yeah."

Q: "And if you wanted to wait, you could pick it up on Monday?"

A: "Yeah."

Q: "And you decided you wanted your money, so you came back for it?"

A: "Yeah."

This second extract, which was also read to the jury, does not contradict the first; it fills it out. When the second quoted portion of the deposition is included, there is no inconsistency between Peluffo's trial testimony, that he had a choice of picking up his check on Friday or Monday, and his deposition testimony. A jury could not reasonably conclude from his entire testimony that Middlesex instructed Peluffo to make a special trip for his check on Friday and, thus, impelled his travel. Middlesex no doubt had a duty under G. L. c. 149, Section 158, to make a paycheck available to its weekly wage earners on Friday, but it was not in derogation of any

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interest of Middlesex if a worker chose to pick up a check the following Monday.

To the voluntary nature of Peluffo's travel certain additional factors may be considered as bearing on whether Peluffo, at the time of the accident, was engaged in his own business or in his employer's. Peluffo at the time of the accident was off duty with Middlesex; he was not being paid; he was driving his own vehicle without mileage allowance from Middlesex; he was not on call to be back at work in the event the weather changed for the better or to perform other duties. As Peluffo's conduct at the time of the accident was independent of the requirements or interests of his employer, Middlesex was entitled to allowance of its motion for judgment notwithstanding the verdict.

Judgment reversed.

Judgment for the defendant Middlesex Corporation.


[Note 1] Sandra M. Kelly, his wife

[Note 2] A sum of $1,700,000 for Kevin J. Kelly and $300,000 for Sandra M. Kelly, whose claim was for loss of consortium.

[Note 3] A third defendant was the motorist who had been stopped for speeding. The complaint against him was dismissed on a motion for a directed verdict.

[Note 4] In denying the motion for a directed verdict and letting the jury have the case, the trial judge followed the procedure recommended in cases such as Smith v. Ariens Co., 375 Mass. 620, 627-628 (1978), and Fahey v. Rockwell Graphic Sys., Inc., 20 Mass. App. Ct. 642, 643 n. 4 (1985), for occasions when the judge thinks it a close question whether the jury should get the case.

[Note 5] There is no substance to the plaintiff's point that the issue of scope of employment was not raised at trial. Contrast Uloth v. City Tank Corp., 376 Mass. 874, 883 (1978). The grounds raised on the motion -- no master/servant relationship, not subject to employer's control, and not subject to employer's direction -- added up to whether Peluffo was acting within the scope of his employment.