Opposition Brief — Garford Trucking Corp. v. Mann

FILE COPY I

OCT 14 1947

wren

Supreme Court of the United States

October Term, 1947.

No. 345

GARFORD TRUCKING CORPORATION, ct al.,

Defendants, 1ppellants, Petitioners,

Vs.

JOSEPH MANN,

Plaintiff, Appellee, Respondent.

RESPONDENT'S BRIEF IN OPPOSITION TO PETI-

TION FOR WRIT OF CERTIORARI TO THE CIRCUIT

COURT OF APPEALS FOR THE FIRST CIRCUIT.

STEPHEN C. STRUFFOLINO,

/ PAUL A. BARRON,

Attorneys for Respondent.

LAWYERS BRIEF & PUBLISHING CO

BOSTON, Mass

SUBJECT INDEX.

Page

entomsaeh OF GG COD oi occccsscscscesccccssesseeses 1

Issues Involved on this Petition ..................6. 2

Statement of Material Facts .............cceeeeseees 3

Reasons Submitted for Denial of the Writ ............ 10

Argument and Authorities ...................+..005 14

I. The Fvidence and The Permissible Inferences

Therefrom Warranted a Finding that Glogowski

was Acting Within the Scope of His Employment

at the Time of the Accident ...................5.. 14

Il. The Declarations of Glogowski Were Admissible

DE oi cungenahennse denned oaweakbaanedes 26

III. The Admission of Such Evidence, Even if Tech-

nically Erroneous, Did Not Constitute Harmful

BE ovdtnashec cues sebcthcnsucenssedcdivacaees 31

A. The Corporate Defendant Waived Its Objec-

tions to the Competency of the Evidence .... 31

B. The Exception to the Charge was not Validly

BE <6 6p 440 GROMER O45 ced dba deca netetenies 39

C.&D. The Evidence in Question was Merely

RE, nc nccccccpscdcnenesetecans 40

CIO oink s vnc ann c0nccisecsecdsccassccceneneea 42

TABLE OF Cases.

Allen v. Trust Co. of Georgia, 326 U.S. 630, 686...... 11

Alpha Steamship Corp. v. Cain, 281 U. 8. 642, 643...... 14

Anderson v. Abbott, 321 U. S. 349, 856. ............... ll

American Coorperative Serum Ass’n v. Anchor Serum

Co., 153 F. (2d). 907, 912 (1946)............cceees 29

Arab Corporation v. Bruce, 142 F. (2d) 604, 608,, note 9 29

Aldrich vy. Aldrich, 215 Mass, 164,170 .............. 27, 28

De a BAe ae OLE Ts eM Ay

ll.

bAun

Abele v. Dietz, 312 Mass. 685, 690, 691 ............ 36, 42

Bankers Trust Co. v. Higgins, 65 F. Supp. 836, 839.. 30

Bonino v. Caledonio, 144 Mass. 299, 302 ............ 31

Busby v. Electric Utilities Union, 323 U.S. 72, 75.... 12

Buckeye Powder Co. v. DuPont Powder Co., 248 U.S.

B,D nncxdscccandateassien saacvwceeads snacabeees 29

Brady v. Doherty, 253 Mass. 518, 522 .............. 27

Bendett v. Bendett, 315 Mass. 59, 65, 66 ........ 32, 36, 42

Chicago and N. W. Ry. Co. v. McKenna, 74 F. (2d) 155,

FO kc cncnd vans 6d0Ks pecans et eensnaseuas hank hokhe 30

Conklin v. Consolidated Railway, 196 Mass. 302 .... 31

Comm. v. Dyer, 243 Mass. 472, 508... ............0000s 3

Cummings v. Republic Truck Co., 241 Mass. 292, 294,

SD canncsentcdaseaeesedgceanndcaseneseakens 16, 23, 24

Commonwealth vy. Trefethen, 157 Mass. 180, 186,

St cca ccnine Edd mad Ane naaeakkeiass vaueuen 27, 28

Crosby v. Mutual Life Ins. Co., 221 Mass. 461, 463, 464 27

Commonwealth v. Damon, 136 Mass. 441, 448,449 .... 27

Comm. v. Ramey, 243 Mass. 394, 397 ................ 27

Conun. v. Rubin, 318 Mas. 587, 588, 589 2.2.2... ecices ee

Commonwealth v. Parrotta, 316 Mass. 307, 312, 313..

LEeaaRKEe Ke Cee banee Ren cas ae eeee knee 32, 33, 36, 38, 39

Commonwealth v. Capalbo, 308 Mass. 376, 382 ...... 32, 55

( Jommonwealth v. Mannos, 311 Mass. 94, 114, 115 . .32, 35, 36

Comeau v. Beck, fe Eyer errs 35

Cummings v. National Shawmut Bank, 284 Mass. 563,

Be sak veined endne he ceccekcusnneeckiectanswes 37

Comm. v. Johnson, 199 Mass. 55 .............00008- 37

Comm. v. Shephard, 313 Mass. 590, 598 ............ 39

Coneton v. Old Colony Street Railway, 212 Mass..28, 29, 41

Comerford v. N. Y., N. H. & H. R. R. Co., 181 Mass. 528,

EC Te ee FEN A) eee a a ae 41

Duff v. Webster, 315 Mass. 102, 103 ............... ere

Donahue v. Voremberg, 227 Mass. 1,5; 6...... ececact (4

a

Driscoll v. Seanlon, 165 Mass, 348, 349 ............

Dt. of Columbia v. Pace, 320 U.S. 698, 702...0...... 1, 12

DiAngelo v. United Markets, Inc., 319 Mass. 143,

BED cde nscavinsdsdi dees ehicakae ee 32, 33, 36, 38, 39

DuBois v. Powdrell, 271 Mass, 394, 397 ............ 30, 35

Douglas v. Holyoke Machine Co., 233 Mass. 573, 575 . .

Diaz v. U. S., 223 U. S. 442, 450 pee dctn bie Gui eateries

III.

383 ian Ahk 08 ERO pane dane Re ead ew arene bs ee ae

trie R. R. Co. v. Tompkins, 304 U. S. 64..... epee ai

Exchange Drug Co, v. Long, 281 U. 8. 693, 694. fava et

Elmer v. Fessendon, 151 Mass. 359, 362 ............

Kastman v. U.S., 153 F. (2d) 80, 84; cert. denied 66 S.

GR. TD 20: dns ces i consgaeisandsasabanvaestns 30, 39, 40

Field v. U. S., 205 U. S. 292, 295, 296. ............- err

Flournoy v. Wiener, 321 U.S. 253, 259... 2.2.2.2... ae

Forsyth v. Hammond, 166 U.S. 506, 514. .........0...

Forsyth v. Hammon, 166 U.S. 504, o14. 00000005000...

Fleischmer v. Durgin, 207 Mass. 435, at pagt 436

babackees aeWkeheneken be keineseehascaauues 14, 16, 18, 23

Fitzgerald v. Boston & Northern Street Railway, 214

ee Ga: Ge on kde eackvbnciewinanksuestaceses

General Talking. Pietures Corp. v. ilectrire Co., 304

8 GP Perry tere Ory Pe

Glaser v. United States, 289 F. 255, 256, cert. denied, 263 —

ee Perr rrre cerr e re ree erry Ty

Greater New York Live Poultry Chamber of Com-

- merce v. United States, 47 F. (2d) 156, 159 (C. C. A.

Beet Sakae dhngk hak chkncg ek hehe e ave Merent ae med :

Greater New York ©. of C. v. U.S. 47 F. (2d) 156, 159... 29

Greenough v. Tax Assessors, 91 L. KE. 1274, 1277 (1946) 12

Gunning v. Cooley, 281 U. S. 90, 94........... cc ee eeee

Hamilton Brown Shoe Co. v. Wolf Bros., 240 U. S.

A ce kosher dcenncheskeeueeesk ben Reuseaune

ae.

IV.

PAGE

Hawes v. Victoria Mining Co., 160 U. S., 303, 318.... 29

Higgins v. Cair Bros. Co., 317 U. 8S. 572, 574 ........ 42

Hillsborough v. Cromwell, 3826 U. S. 620, 629, 630...... 12

Holmes v. City of Fayetteville, 281 U.S. 700........ «. 10

Houston Oil Co. of Texas v. Goodrick, 245 U.S. 440,441 11

Hubbard v. Allyn, 200 Mass. 166,-171 .............. 30

Huddleston v. Dyer, 322 U.S. 232, 236.............. 11, 12

Hayes v. Wilkens, 194 Mass. 223, 226 .............. 18, 21

Haves v. Lumberman’s Mutual Casualty Co., 310

A coe cic cavhaNnscsbecbisdsrcceericeses 18

Hoyt v. Russell, 117 U. 8S. 401, 404, 405 ............ 22

Hagar v. Norton, 188 Mass. 47, 52 ................ 27

Howes v. Colburn, 165 Mass. 385, 387 .............. 28

In Re New Hampshire Development Co., 62 F. Supp..

PE dane kd des Uhbak ee eeea nen beccrcccseanés 22

Inness v. Boston, Revere Beach & Lynn R. R. Co., 168

we Sik Shedd kat kd bad veceaes a 27, 28, 41

In Re Coleman, 53 Idaho 339 3438, 344 ................ 28

Jackson v. Colonial Provision Co., Ine., 314. Mass. 177,

NE SST Oe Pee Oe re eee 30, 35

Janback v. Aamunkoitto Temp. Soc., 273 Mass. 45, 50 38

Kerr v. Modern Woodmen of America, 117 F’. 593, 595.. 30

Klaxton Co. v. Stentor, 313 U. S. 487, 497............ 12

Kay v. Audet, 306 Mass. 337, 338 ..............00c0e 3

Kelly v. Railway Express Agency, Inc., 315 Mass. 301,

CIM rece doe dv EAGR HESS ES 5K ea KAR Kavi eesae 4

“aAbra Mining Co. v. U.S., 175 U. S. 423, 499........ 13

Lawlor v. Woewe, 235 U. S. 522, 536................ 29

Layne v. Bowler Corp. v. Western Well Works, Inc.,

ee OM rece caw ivy ses beesccvatase 10

Lewandowski v. Cohen, 237 Mass. 125, 126 ...... 18, 21, 23

‘Lane v. Moore, 151 Mass. 87, 89, 90-92 ........ 27, 28, 30, 31

Magnum Import Co. v. Coty, 262 U. S. 159, 163........ 10

PON WSs fig Re Ox TA, TUE. kc icc saccacidstesia 10

_—

V.

PAGE

Myers v. Reading Co., 91 L. EK. 1199, 1203 (1946)...... 4

Mathewson v. Edison Electric luminating Co. of Bos-

ton, 232 Mass. 576, 581 ........ * 16, 18, 21, 24, 26, 32, 41

McDonough v. Vozzela, 247 Mass. 552, 558 ............ 16

McKeever v. Ratcliffe, 218. 17, 20,21 ................. 18

Mahan v. Perkins, 274 Mass. 176, 179... ............. 27

Malone v. Walsh, 315 Mass. 484, 490 ................. » 27

Me@oy v. Jordan, 184 Mass. 575, 576, 577 «2.2... ee. 28

Morrison v. Lawrence, 186 Mass. 456, 458 ...... 5s wie 32

Milwaukee Mechanics Ins. Co. v. Oliver, 189 F. (2d) 405,

BO. Spd Vand esat asda ence canary seeds bac tee 32

Mahoney v. Harley Private Hospital, 279 Mass. 96, 100. 35

National Labor Relations Board v. Southern Wood

Preserving Co., 135 F. (2d) 6067, 607.............. 29

Norwood v. Great American Indemnity Co., 146 F. (2d)

ls Ee Kh kcGiee aaa de eek cdwke s korea we 12, 26, 32, 33

Nowell v. Chipman, 170 Mass. 340, 343, 344 ......0..... 31

Noyes v. Gagnon, 225 Mass. 580, 588 .................. 32

O’Leary v. Fash, 245 Mass. 123, 123 ......5.....055. 24

Orpin v. Morrison, 230 Mass. 529, 432 ............... 37

Ouimette v. Harris, 219 Mass. 466, 470 ............... 18

Pilgrim v. MacGibbon, 313 Mass. 290, 292 ............ 3

Pigeon’s Case, 216 Mass. 51, 54 .... 0... ccc cece e en .16, 22

Pickens v. Davis, 134 Mass. 252, 257, 258 ........ 26, 28, 31

Partridge v. United Elastie Corp., 288 Mass. 138, 141 .. 27

Potter v. Baldwin, 133 Mass. 427, 428, 429 .......... 28, 39

Perivoliotis v. Eveleth, 251 Mass. 444, 446, 447 ...... 32, 36

Ponhi v. Brett, 319 Maas. 197, 203 .... 2.0... cn. sce cness 35

Palmer v. Hoffman, 318 U. S. 109, 119 .......... 30, 39, 40

Rorick v. Devon Syndicate, 307 U.S. 303..........0... 2

Ruhlin v. New York Life Ins. Co., 304 U. S. 202, 206.... 12

Reynolds v. Denholm, 213 Mass. 576, 578 .......... 18, 23

Ritchie v. Walker, 63 Conn. 155, 161, 162 (cited with

approval in Mathewson v. Edison Elec. Ill. Co., 232

ME ses oes e ec eleid cs beas 18, 21, 23

7

VI.

PAGB

Riley v. Standard Oil Co., 231 N. Y. 301, 305, 306, (cited

in support of Cummings v. Republic Truck Co., 241

es EE ko wu och ea ncad oe nauw wee ues 18, 21, 23

Ryder v. Board of Health of Lexington, 273 Mass. 177,

RR een Fee Se ee ee ea 32, 36, 37

Rapson v. Leighton, 187 Mass. 482, 435 ...5....... ‘ee OS

Ryan v. DiPaolo, 313 Mass. 492, 494 ............. 0.0008 35

Randall v. Peerless Motor Car Co., 212 Mass. 352, 384 .. 37

Sonthern Power Co. v. North Carolina Public Service

i ee Pe I aaa ev ee nk scasedvas kwon cases 11

Standard Oil Co. of New Jersey v. Neville, 48 F. (2d)

Se bab WA Greed dane ates se Kesneece senses shes 42

Schroepfer v. A. S. Abell Co., 138 F. (2d) 111, 116; cert.

I He Wl SU EN AES ois ex hee cle daees Ces nea duads 3

Sawyer’s Case, 315 Mass. 75, 79 ..............4.. 23, 24, 25

Shailer v. Bumstead, 99 Mass. 112, 122, 123 .......... 27

State v. Journey, 115 Conn. 344, 351 .................. 28

Sylvester v. New York, New Haven & Hartford 2. R.,

eC TINE CCPC OCs ena desea ene geese 30

Snipes v. Augusta-Aiken Ry. & Klee. Co., 151 8S. C. 391,

RE REA Oey Oo Foray Ser ye Ee ee re 32

Stearns v. Warren, 284 Mass. 268, 275 ............... 35

Spiller v. Atchison, Topeka & Sante Fe, 253 U. S. 117,

BP Sede oees ceGuk bee da RRA WWENS Leet cdg eee ces 35

Solomon v. Dabrowski, 295 Mass. 358, 359, 360 ........ 39

Salonen v. Paanenen, 1947 Mass. Ad. Sh. 29, 36 ...... 39, 39

Tobin v. Walkin Shaw, 23 F. C. 1346, 1347, 1348 (C. C.),

a Bee Terr TTT TT Tere Tt 29

Trouser Corporation v. Goodman & Theise, 153 F. (2d)

EE a od ko Cocaine becker ead etes suk cunvewees 32, 33

Talty v. Freedman Savings.& Trust Co., 93 U. &. 321,

DE Bab uuinbnADA CRM RRONA HIGHER bs ae aencaaers Pcnees 3

Town of Burlington v. Dunn, 318 Mass. 216, 221 ........ 22

The Wahkeena, 51 F. (2d) 106, 108 .................. oo

—

VIL.

- PAGE

United States v. Fried, 149 F. (2d) 1011, 1013 ........ 32

United States v. Johnston, 327 U. S. 106, 113.......... 11

U; &-v.. Rimor, 320 U. &. GAT, SOB. oo. cic c ccncwsesissss 10

U.S. v. Schuchhardt, 49 F. Supp. 567, 568 (1943)...... 29

U. &, v. Fomwiok, S12 BP. Bam, BB. 0. caved dscns a

U.S. v. Schlotfeldt, 136 F. (2d) 935, 938.............. 29

i, ee I, Be Bes WI IN 66 kh haie se Aocennkaeinens 30

G8. v. Weim SGT. Be BOR UBD. oon vias viewndvanccs Be

U.S. v. O’Donnell, 303 U. S. 501, 508.................. 11

U.S. v. Commercial Credit Co., 286 U. S. 63, 67........ 11

TT. &: Doin, SU TO FW aig ei o vonce casas 39, 40

Ventromile v. Malden Electric Co., 317 Mass. 132, 135 .. 35

Walling v. Jacksonville Paper Co., 317 U. 8S. 564, 570 42

Washington Fidelity Insurance Co. v. Burton, 287

a Se a acs Virbesendceee nN Nev casinet ha wes 10

Weston v. Barnicoat, 175 Mass. 454, 456 .......... 30

.: kD SU ee rrr 30

Walsh v. Feinstein, 251 Mass. 109, 110, 111 .......... 3

Worcester County Park Commission v. United States,

as ee ee I ED a na or bec ean ds eevasceeses 12, 26

Westchester County Park Commission v. United States,

143 F. (2d) 688, 694, 695; cert. denied, 323 U.S. 726 .. 32

Zucht v. King, 260 U. 8S. 174, 176, 177................ 10

SraTutTss.

Act of February 13, 1925, Chapter 229, amending

#240(2) of the Judicial Code, 43 Sts. 938, 28 U. 8.

CAR x BO Raha 640 55 Ch Ride dene weeakes 2

Federal Rules of Civil Procedure:

EN aN enh suka e stn ee bnakee ck ceeakn asec ank 2

EE cn ones sec eGbesdheWeenetaAvwes Cabeaanbes 2

Rule 61 (28 U.S. C. A. ff. $¢723c) ..........0000ee 33

Rule 51 (28 U. 8. C. A. ff. ##7280) .......... 30, 39, 40

VII.

PAGE;

Judicial Code, as amended:

we Fi 2 Se ee | eee 33

Mass. G. L. (Ter. Ed.) C. 231, £132 ............00000. 32

Rule 38 (2) of the Revised Rules of the Supreme Court

Se Be ee NN occas saa cp eden cicenviwnes 2

Rule 38 (5) (b) of the Revised Rules of the Supreme

. eenrgeey eee rere eT TTT ES Soe Pree CET eT 10, 12

gg ET 4G Serre eeerrri oer re 12, 13

MISCELLANEOUS.

Restatement, Agency, #289, Comment C ............ 29

Starkie, Evidence, (10th Am. Ed.) 89 ................ 27

1947 World Almanac:

uae ee CAS GaN Aan nnd Ag EKER OASR ES OREO OS 22

SE sda cihw eles honk ews aacenaw sak aeveeue cud 22

Wigmore Evidence, (3rd Ed.) :

Vol. VI, #1729, p. 91, #1714, p. 60, #1726 (2), pp.

87, 88; Vol. IT, #34233, 241, 242 (3) ............ 27

Vol. VI, #1715, p. 62; #41726, pp. 87, 88 .......... 29

Wigmore, Evidence, (3rd Ed.) :

INE 6.5 cha hdcnnawetnanee enna bedeacdene 31

~ wes ee

—

Supreme Court of the United States

October Term, 1947.

Garrorp TrRucCKING CorPorRATION ET AL., Petitioners.

v.

JosEPH Mann, Respondent.

BRIEF OPPOSING PETITION FOR

WRIT OF CERTIORARL

Statement of the Case.

This action was originally brought by the plaintiff in

the Massachusetts Federal District Court seeking to re-

cover damages for personal injuries sustained by him on

May 9, 1945, on Concord Street, a public highway in that

part of the Town of Framingham, Massachusetts, known

as Saxonville, as a result of a collision between the plain-

tiff’s automobile and a trailer-truck owned by the defend-

ant Garford Trucking Corporation (R. 61, 224), and be-

ing driven by the defendant, J. Albert Glogowski.

The case was tried before a judge and a jury. The case

was submitted to the jury on counts one and four of the

complaint, predicated upon negligence, respectively, of the

corporate and the individual defendant, other counts of the

complaint being dismissed. (R. 8, 9, 244, 245.) On Novem-

ber 1, 1946, the jury returned a verdict for the plaintiff on

said counts one and four against each defendant in the

sum of twenty-nine thousand dollars ($29,000.00) (R. 9, 10),

and judgment against each defendant in the latter sum was

entered on the verdicts on November 5, 1946 (R. 10).

The defendants appealed to the Circuit Court of Appeals

for the First Circuit, which Court, after a hearing, filed a

Seed

“—

2

decision on July 24, 1947 (.... F. (2d) ...., not yet re-

ported) affirming the judgment of the District Court.

The defendants now proceed in this Court on a petition

for a writ of certiorari (under the Act of February 13, 19235,

Chapter 229, amending #240(a) of the Judicial Code, 43

Sts. 938, 28 U. S. C. A. #347) to review the aforesaid de-

cision of the Cireuit Court of Appeals.

Issues InvoLvEp on Tu1s Petirion ror CERTIORARI.

‘‘Of the various questions raised below and briefed here, |

only the questions specifically brought forward by the peti- |

tion for the writ of certiorari will be considered.’’ Rorick v.

Devon Syndicate, 307 U. S. 299, 303. Flournoy v. Wiener,

321 U. 8S. 253, 259, and cases cited. Rule 38(2) of the Re-

vised Rules of the Supreme Court of the United States.

Although both defendants appealed to the Circuit Court

ot Appeaus and both defendants have joined in this petition

for a writ of certiorari, the questions raised and argued

in the Cireuit Court of Appeals and in the present petition

involved solely the correctness of the judgment entered

against the corporate defendant.* And insofar as the

*The defense of contributory negligence was waived by the defendants

during the course of the trial in the District Court. (R. 263)

During the course of the oral argument in the Circuit Court of Appeals it

was conceded Ly counsel for the defendants that the jury could find that the

driver Glogowski was negligent in his operation of the motor truck and that

such negligence contributed to cause the plaintiff’s injury. In any event no

question was saved in the District Court, or was raised by the defendant’s

Statement of Points ur was argued on the appeal in the Circuit Court of Ap- ;

peals regarding the sufficiency of the evidence in the latter respects. No /

motion for a directed verdict under Rule 50 (F. R. C. P.) nor for dismissal

under Rule 41b (F. R. C. P.) was presented in the District Court with re-

spect to count four of the complaint predicated on negligence of the indi-

vidual defendant Glogowski. Various other objections and exceptions taken

by counsel for the defendants during the course of the trial (R. 87, 143, 168,

202, 203, 206, 217, 224, 233, 239, 109, 118, 121, 122, 268-270, 249, 109, 118,

3

case aguinst the corporate defendant is concerned, the

only contentions made by said corporate defendant below

and in this petition are: (1) That the trial judge and the

Cireuit Court of Appeals erred in their rulings that testi-

mony of certain declarations made by Glogowski (herein-

after set out) three to ten days after the accident could be

taken into consideration by the jury as evidence of Glogow-

ski’s state of mind, purpose, belief or intention in travel-

ling on a particular route at the time of the accident as

bearing on the question whether he was then acting within

the scope of his employment by the corporate defendant;

and (2) that in the absence of the foregoing testimony the

evidence in the case was insufficient to warrant the jury

in finding that at the time of the accident Glogowski was

acting within the scope of his employment by the said

corporate defendant.

Statement of Material Facts.

In determining the sufficiency of the evidence to warrant

the finding that Glogowski was acting within the scope of

his employment ‘‘the evidence must be viewed in its aspects

most favorable to the plaintiff’’, Pilgrim v. MacGibbon,

313 Mass. 290, 292; Walsh v. Feinstein, 251 Mass. 109, 110,

111. ‘‘The issue was for the jury, if anywhere in the evi-

dence from any source derived, any facts or combination

of circumstances could be found from which a reasonable

inference could be drawn in favor of the plaintiff. If such

ee Ya

121, 122, 265), and assignments of errors predicated thereupon, must be

deemed abandoned and waived, since none of such objections or exceptions,

or assignments of errors were briefed or argued in the Circuit Court of Ap-

peals or are briefed or argued or set forth in the present petition. Comm. v.

Dyer, 243 Mass. 472, 508. Kay v. Audet, 306 Mass. 337, 338. Talty v. Freed-

man Savings & Trust Co., 93 U. S. 321, 326. Schroepfer v. A. S. Abell Co.,

138 F. (2d) 111, 116; cert. denied, 321 U. S. 763.

= ne ne ae

4

combination of circumstances could be found it is imma-

terial how many other facts or combinations of circum-

stances could be found which would lead to conclusions ad-

verse to the plaintiff.’’ Kelly v. Railway, Express Agency,

Inc., 315 Mass. 301, 302. ‘‘Only when there is a complete

absence of probative facts to support the conclusion reach-

ed does a reversible error appear where there is an eviden-

tiary basis for the jury’s verdict, the jury is free to discard

or disbelieve whatever facts are inconsistent with its conclu-

sion, and the appellate court’s function is exhausted when

that evidentiary basis becomes apparent, it being immate-

rial that the court might draw a contrary inference or feel

that another conclusion is more reasonable.’’ Myers v.

Reading Co., 91 L. E. 1199, 1203 (1946), 67 S. Ct. 1339,

funning v. Cooley, 281 U.S. 90, 94.

The following facts could be found by the jury:

At the time of the accident, on May 9, 1945, the defend-

ant Glogowski was a truck driver in the general employ-

ment of the defendant, Garford Trucking Corporation,

of South River, New Jersey. (R. 175, 179, 257.) He had

been so employed for one and one-half years previous to

the accident. (R. 237.) The defendant corporation had a

branch office vr terminal in Plainville, Massachusetts, part

of North Attleboro, Mass., which was in charge of one

McCarthy who was the general manager and dispatcher.

(R. 179, 234.) On the day before the accident Glogowski

had arrived at the Plainville terminal from New Jersey

with a truck and an empty trailer. (R. 176, 234.) At ten

o’clock on the morning of the accident he was called to

work and reported for duty at said terminal with such

truck and trailer. (R. 176,179.) At that time he received

instructions from McCarthy to take his truck and empty

trailer to the Draper wool storehouse in Framingham,

_—

5

Mass., leave the empty trailer there, pick up a trailer load-

ed with wool, and thence to proceed to the Garford main

terminal in South River, New Jersey, or to Trenton, New

Jersey, (R. 225) which was to be the end of his run. (R.

176, 179.) In accordance with such instructions Glogowski

went from Plainville to Draper’s in Framingham, a dis-

tance of 27 miles (R. 235), (Framingham being almost di-

rectly due north of Plainville) dropped the empty trailer,

and picked up a trailer loaded with bales of wool with which

he was to proceed to New Jersey. (R. 176.)

From the Draper storehouse Glogowski proceeded three-

fourths of a mile to the center of the Town of Framingham.

There he took Route 126, known as Concord Street which

led from the Town of Framingham northerly to a point in

Framingham where Route 126 crosses and goes over Route

9, known as the Worcester Turnpike, by way of a bridge

or overpass. (R. 47, 48, 62, 136, 139.) Draper’s was two

miles from the Worcester Turnpike. (R. 45.) Glogowski

(according to his own testimony) ‘‘took the most direct

route [he] knew of’? from Draper’s to the Turnpike: he

couldn’t remember the streets or route numbers he fol-

lowed. (R. 179, 180.) Then he continued to follow the same

route, Route 126, in a generally northerly direction from

the Worcester Turnpike up to the scene of the accident

(R. 184), which occurred at approximately 3:15 or 3:20 in

the afternoon, (R. 135, 226, 80) on Concord Street (Route

126) in that part of Framingham known as Saxonville, at

the corner of the intersection of Concord Street with Cherry

and A Streets. (R. 31, 16, 12-17, 127.) The place of the

accident was one-half mile or one mile from the intersec-

tion of Route 126 with Route 9, the Worcester Turnpike.

(R. 47, 143.)

Route 126 (Concord Street), from the point where it

overpasses the Worcester Turnpike in Framingham, and

6

from th* voint of the accident, goes northerly into Way-

land, Mass. In Wayland, Route 126 joins Route 20, which

junction is five miles north of the place where the acci-

dent happened in Saxonville. (R. 42, 44,48.) From Way-

land you swing around over Route 20 in a westerly direc-

tion, which latter route carries you up through Marlboro,

Mass.; thence to a point seven miles just outside of Wor-

cester, on the Boston side of Worcester, at which point

Route 20 crosses Route 9 (the Turnpike) by means of an

underpass bridge, and swings out from there, as a four-

lane highway, into Connecticut ‘till it merges with Route

15 which leads all the way down to New York and New

Jersey. (R. 42, 44, 49, 60,63.) Route 20, (also known as

the Old Boston Post Road) from Wayland, Marlboro and

onward, is a through way; there are stop signs on each

side of it; it is a common highway for travel, and is the

main route used for transportation into New York and New

Jersey. (R. 42, 60, 63.)

There was evidence that, from the point in Framingham

where Route 126 went over the Turnpike (Route 9), Glogow-

ski could have turned off Route 126 and taken Route 9

itself, which went to Worcester and ultimately led to the

same junction where Route 20 underpassed Route 9, seven

miles the Boston side of Worcester. (R. 43, 44, 47, 49, 62.)

There was evidence that the distance between the latter

junction and the intersection of Route 126 with Route 9

in Framingham, by way of Route 9 on the Turnpike, was

about fifteen miles; that the distance between the same two

points going by way of Wayland and Sudbury would be

about twenty-eight miles. (R. 64.)

Riding on the truck with Glogowski at the time of the

accident was a sailor, one Donald Chasse, who lived on a

street in Saxonville (Danforth Street) which branched off

‘—

7

Route 126, one-half to three-quarters of a mile from the

place of the accident, towards the Town of Saxonville

(R. 75, 135, 137, 151). Glogowski picked up the sailor on

Route 126 near the point where Route 126 overpasses Route

9, a half mile or so from tthe scene of the accident. (R. 136,

47, 143.) The jury could find that the exact point at which

the sailor boarded the truck was beyond the intersection

of Route 126 with Route 9 on the Saxonville side headed

towards Saxonville (R. 136, 138, 140); that the rear of the

truck (which was 40 feet long) was at that time 100 feet

beyond the northerly line of the Turnpike (R. 141); that

the sailor was going home on an overnight pass, that he

didn’t know Glogowski and had never seen him before; that

when he got on the truck it started up promptly,—‘‘Glogow-

ski asked him where he was going. The sailor said Saxon-

ville—’’; (R. 180) that there was no further talk as to where

the rider was going (R. 142) and no talk with the driver

relative to the sailor’s address in Saxonville or as to how

he would get from Route 126 to Danforth Street on which

the sailor lived. (R. 166.)

There was further evidence, as hereinafter set out, that

Route 9 from Framingham towards Worcester carried much

heavier traffic (mostly of the truck and trailer character)

and was much hillier than Route 20.

During the course of the trial the plaintiff, on direct ex-

amination, testified to the following conversation relative to

the accident which took place three to ten days after the

accident (R. 124-129; 91-94) at the Framingham Hospital,

where the plaintiff and Glogowski were confined, between

the latter and one Orrin (Red) Davis who was also a

patient in the hospital:

‘*Red [Davis] asked Glogowski in the course of the

conversation what he was doing on that other road.

He said, ‘You told me you were going to Worcester.’

8

‘*Red said to Glogowski, ‘You told me before you

were going to Worcester. Why did you go across

there?’ So Glogowski told Red, ‘Oh, I usually take this

road. I hit No. 20 over there, and oh, boy! then you

can open it up, zoom.’ ’’ ( R. 93.)

This conversation was admitted subject to the objection

of counsel for the defendants whereupon the court ruled

that the statements made by Glogowski bound only Glogow-

ski and not the defendant corporation. (R. 93.)

On cross-examination of the plaintiff, counsel for the de-

fendants asked the witness to state the entire conversa-

tion and to repeat it, and examined the plaintiff fully con-

cerning the same conversation. (R. 95,96.) Thereupon the

plaintiff testified that ‘‘the two drivers exchanged their

experiences as to their driving along certain routes’’ and

‘*told each other which routes they usually take and which

they find better and which they do not’’; that this ‘‘Red”’

asked Glogowski ‘‘why he takes a road in that direction”’,

to which Glogowski relied that ‘‘he finds this much better,

not as congested as the other route’’; that Glogowski

said, ‘‘When you hit that road you can open up and go

zoom’’; further, that ‘‘Red’’ asked Glogowski, ‘‘How did

this happen?’’, to which Glogowski replied, ‘‘ Well, I just

couldn’t keep it under control. They overloaded me’’;

that Glogowski also mentioned that this was his third acci-

dent and he talked about it in a sort of bragging way; that

he said, ‘* Boy, it takes me to break them up, doesn’t it?’’;

that he said, ‘‘This is my third accident. It takes me to

break them up’’ or something like that. (R. 97, 98.)

Later in the trial Orrin Davis himself testified, on direct

examination by plaintiff’s counsel, and subject to defend-

ants’ objection, to the same conversation had by the witness

with the defendant Glogowski at the hospital, as follows:

9

‘‘He told me he was going down Concord Street and

that he had a high load, that he was top heavy, and that

all he remembered about the accident, he just went

over. * * * Lasked him where he came from. He said

he came from Plainville and went to the Draper wool

shop and picked up his trailer there, and I asked him

where he was going. He said New Jersey, so I asked

him, ‘What the h--- were you going that way for?’

He said, ‘I go that way hecause I can make better

time.’ And I said, ‘Why didn’t you take the Turn-

pike’? He said, ‘I go that way to make better time.’

* * * He said he could really wreck them for you;

that that was his third accident.’’ (R. 127.)

On cross-examination of the same witness, counsel for

the defendants here again questioned the witness in refer-

ence to the same statements made by Glogowski to which

the witness replied in substantially the same above cited

language. (R. 130, 134.)

In reference to the foregoing conversations testified to

by the plaintiff and the witness Davis, the court in its

charge to the jury instructed them as follows:

‘‘Now, you can take that evidence into consideration

as evidence of Glogowski’s state of mind at the time

he travelled over Concord Avenue, and you can take

it in consideration in deciding the question—as to what

his purposes were. Was his purpose to perform his

master’s business in going over Concord Avenue in

that connection? You can determine that evidence.

Because that is evidence of his state of mind. And I

charge you it is competent for you to consider in* * *

determining whether or not he was working within the

scope of his employment, whether when he went along

Concord Avenue as he did at the time of the accident,

he was performing his master’s business or was in-

_— to perform his master’s business.’’ (R. 260,

61.)

Counsel for the defendants excepted to the above portion

of the charge (R. 269).

_—_—

Pa nS bon LIN

10

Reasons Submitted for Denial of the Writ.

(a) Want or SusstantiaL or IMporTANT QUESTION.

The questions presented by petitioners for review do not,

either from their character or importance, require the exer-

cise of the sound judicial discretion of this Court in grant-

ing a writ of certiorari. The questions are of local sig-

nificance only and are not of such general interest and im-

portance as under the rules and practice of this Court war-

rant their review on certiorari. Washington Fidelity In-

surance Co. v. Burton, 287 U.S. 97, 101, 102. Rule 38 (5) (b)

of the Revised Rules of the Supreme Court. ‘‘It is solely

when questions of peculiar gravity and general importance

are involved that the power of this Court to require a case

to be certified can be properly invoked’’ U. S. v. Rumer,

220 U. S. 547, 548. Forsyth v. Hammond, 166 U. S. 506, 514.

Layne & Bowler Corp. v. Western Well Works, Inc., 261

U. S. 387, 392, 393. Magnum Import Co. v. Coty, 262 U.S.

159, 163. McArthur v. U. S., 315 U.S. 787. Zucht v. King,

260 U. S. 174, 176, 177. Exchange Drug Co. v. Long, 281

U. S. 693, 694. Holmes v. City of Fayetteville, 281 U. S.

700. ‘*The jurisdiction to grant certiorari is not exercised

merely to give the defeated party in the Circuit Court of

Appeals another hearing’? Magnum Import Co. v. Coty,

262 U. S. 159, 163. Importance of the case to the applicant

or to private interests because of the amount of money in-

volved, or otherwise, is immaterial. Field v. U. S., 205

U. S. 292, 295, 296. Hamilton Brown Shoe Co. v. Wolf

Bros., 240 U.S. 251, 258. Forsyth v. Hammond, 166 U. S.

504, 514.

The controverted question in this case is whether the evi-

dence sufficed to establish a finding that Glogowski was act-

ing within the scope of his employment at the time of the

accident, which was primarily a question of fact. The pro-

_—

11

priety of submitting this question to the jury depended

essentially upon an appreciation of the evidence and the

inferences which could be drawn from it. ‘‘Granting of a

writ of certiorari would not be warranted merely to review

the evidence or inferences drawn from it.’’ General Talk-

ing Pictures Corp. v. Electric Co., 304 U. S. 175, 178.

houston Ou Co. of Teawas v. Goodrick, 245 U.S. 440, 441.

Southern Power Co. v. North Carolina Public Service Co.,

263 U. S. 508, 509. United States v. Johnston, 327 U.S. 106,

113. ‘‘Having heard all the evidence the trial court con-

cluded that there was sufficient evidence to warrant a find-

ing in favor of the respondent and the Cireuit Court of

Appeals reached the same result.’’ Houston Oil Co. of

Texas v. Goodrick, 245 U. S. 440, 441. ‘Those findings,

being concurrent findings of the two lower courts will be

accepted here without re-examination of the evidence.’’

Allen v. Trust Co. of Georgia, 326 U.S. 630, 636. Anderson

v. Abbott, 321 U. S. 349, 356. U.S. v. O’Donnell, 303 U.S.

501, 508. Dt. of Columbia v. Pace, 320 U. S. 698, 702. U.S.

v. Commercial Credit Co., 286 U. S. 63, 67.

(b) No Conruicr Wire App.icasBLe LocaL Decisions.

The ruling of the District Court and the Circuit Court of

Appeals, that the remarks of Glogowski were admissible

against the corporate defendant to establish his state of

mind, purpose, belief or intention in taking Route 126 out

of Framingham rather than Route 9, is not in conflict with

applicable decisions of the Commonwealth of Massachu-

setts. (See cases and authorities cited in argument, infra.)

If this contention is correct, the writ must be denied without

resort to decisions in the federal courts. ‘‘State law is the

controlling rule of decision in this case as to both substan-

tive and procedural rights of the parties.’’ Huddleston v.

Dyer, 322 U. S. 232, 236. Erie R. R. Co. v. Tompkins, 304

sa

12

U. 8. 64. Greenough v. Tax Assessors, 91 L. E. 1274, 1277

(1946). Klaxton Co. v. Stentor, 313 U. S. 487, 497.

If, however, there is a permissible difference of opinion

in the decisions of Massachusetts on such evidence ques-

tion, this Court is guided by the rule that ‘‘ordinarily it

accepts and therefore does not review, save in exceptional

cases, the considered determination of questions of state

law by the intermediate federal appellate courts. When

(this Court) is called upon to decide matters of state law,

the expression of the views of the judges of such inter-

mediate federal appellate courts, who are familiar with the

intricacies and trends of local law and practice, if not indis-

pensable, is at least highly desirable and an important aid

to this Court’s determination of state law questions.’

ITuddleston v. Dyer, 322 U.S. 232, 237. Ruhlin v. New York

Life Ins. Co., 304 U. S. 202, 206. Hillsborough v. Crom-

well, 326 U. S. 620, 629, 630. ‘‘Only in exceptional cases will

this Court review a determination of questions of local law

by the Cireuit Court of Appeals for the District.’’ Busby

v. Electric Utilities Union, 323 U. 8. 72, 75. District of

Columbia v. Pace, 320 U. 8. 698, 702, 703.

(¢) No Conriicr 1x Feperau Decisions.

In any event the writ should be dismissed, since irrespec-

tive of local or state decisions, the evidence was admissible

under the federal decisions (See cases and authorities cited

in argument, infra) and the federal law, where more liberal,

governs. Rule 43(a) F. R.C. P. Norwood v. Great Ameri-

can Indemnity Co., 146 F. (2d) 797, 799. Worcester Park

Commission v. U. S., 143 F. (2d) 688, 694, 695. The peti-

tion does not set forth any decision of the circuit Court

of Appeals, interpreting the Massachusetts law on the evi-

dence question involved, which is in conflict with the deci-

sion of the Circuit Court below. Rule 38(5)(b), Supreme

|

13

Court Rules. The decision of the Circuit Court is not in

conflict with the decision in LaAbra Mining Co. v. U. 8., 175

U. S. 423, 499, as asserted by the petitioner. The latter case

in no way involves any question in reference to the admissi-

bility in evidence of declarations of state of mind, purpose

or intention.

(d) No Harmrut or PReJuDICIAL Error.

The Cireuit Court of Appeals, in affirming the judgment

of the District Court, ruled that the evidence of Glogow-

ski’s remarks was admissible under Massachusetts law, but

that in any event, such evidence was admissible under fed-

eral law which governs under Rule 43(a) F. R. C. P.

In further support of the correctness of the judgment of

the District Court, the present respondent argued fully and

comprehensively in the Cireuit Court of Appeals and ar-

gues fully in this Court that the testimony of Glogowski’s

remarks, even if technically erroneous, did not constitute

harmful or prejudicial error for the following reasons:

(1) The corporate defendant waived its objections or

exceptions to the admission of the evidence as against said

defendant.

(2) Error, if any, in receiving proof of the declarations

was harmless since the fact that Glogowski was acting

within the scope of his employment at the time of the acci-

dent was fully established by other evidence in the case,,

and since the very intention sought to be proved by the

declarations was established by other evidence in the record.

(3) The exception of the corporate defendant to the

judge’s charge ruling that to the declaration of Glogowski

were admissible as against said defendant, was not validly

taken.

14

In determining whether it will grant certiorari this Court

will also consider the above questions. It need not limit its

determination to the grounds upon which the Circuit Court

of Appeals put its decision. Alpha Steamship Corp. v.

Cain, 281 U.S. 642, 643.

Argument and Authorities.

I. Tue Evmence aND THE PERMISSIBLE INFERENCES

THEREFROM WARRANTED A FINDING THAT GLOGOWSKI Was

Actine Wiruin tHe Score or His EMPLOYMENT aT THR

Time oF THE ACCIDENT.

The principal governing the rights of the parties is well

stated in Fleischner v. Durgin, 207 Mass. 435, at page 436

[which language was cited by the judge in his instructions

to the jury]:

“‘The master is liable for the act of a servant in

charge of his vehicle when the latter is actiag in the

main (italics ours) with the master’s express or im-

plied authority upon his business and in the course of

the employment for the purpose of doing the work for

which he is engaged. The master is not liadle if the

servant has abandoned his obligations or is doing some-

thing not in compliance with the express or implied

authority given, and is not acting in pursuance of the

general purpose of his occupation or in connection

with the doing of the master’s work. Under this rule

the employer has been held responsible for wrongs

done to third persons by his driver during incidental

departures from the scope of the authority conferred

by the employment and upon comparatively insig-

nificant deviations from direct routes of travel, but

within the general penumbra of the duty for which he

is engaged.”’

In the instant case in accordance with the foregoing evi-

dence, most of which is not in dispute, Glogowski followed

the explicit directions of his employer in proceeding with

his truck and trailer from Plainville to Draper’s in Fram-

-—

ae ee

15

ingham and there picking up a trailer loaded with wool

which he had been instructed to transport to New Jersey.

From Draper’s he proceeded with said truck and trailer to

the center of the Town of Framingham (a distance of three-

fourths of a mile) from which point he started to follow

Route 126 (Concord Street) which led to the point of its

intersection with Route 9, the Turnpike, approximately two

miles further, and he continued to follow Route 126 up to

the scene of the accident which was one-half or one mile

from the latter intersection. He had taken ‘‘the most

direct route he knew of’? from Draper’s to the Turnpike.

[Although there was some evidence of other routes or

means of travel to Worcester from Draper’s (R. 47, 62),

branching off the course which Glogowski followed to the

Turnpike, there was no evidence that such other means

of travel were more direct routes to New Jersey than the

Turnpike or the route which Glogowski was travelling on

at the time of the accident. And no argument is made by

the corporate defendant that Glogowski was acting outside

the scope of his employment is not pursuing such other

routes. ]

At the place of the accident Glogowski was travelling,

with his truck and trailer loaded with the wool for de-

livery to New Jersey, on a route (126) which led directly

to Route 20 (five miles from the’ scene of the accident),

which latter route was described in the evidence as a

‘through way’’, ‘‘a common highway for travel’”’ and ‘‘a

main route used for transportation into New York and

New Jersey’’. (R. 42, 60, 63.)

On the above evidence the jury could find that at the

time of the accident Glogowski was following his employ-

er’s explicit instructions and acting with its express au-

thority in the performance of his duty of transporting the

truck and trailer loaded with wool into New Jersey; and

Se ee

6a Sr Rg AT

16

that he was pursuing a route to New Jersey which he could

reasonably have been expected by his employer to take in

the performance of such duty.

Fletschner v. Durgin, 207 Mass. 435, 436.

Mathewson v. Edison Electric Illuminating Co. of

Boston, 232 Mass. 576, 581.

Cummings v. Republic Truck Co., 241 Mass. 292

294, 295.

Pigcon’s Case, 216 Mass. 51, 54.

’

In support of its argument that Glogowski was acting

outside the scope of his employment at the time of the col-

lision, the principal contention of the corporate defendant

is, that, from the point of intersection of Route 126 with

Route 9 (the Worcester Turnpike), Glogowski did not

travel the more direct or shorter route to the junction of

Route 9 with Route 20, which the defendant contends would

have been via Route 9; and furthermore that such alleged

deviation from the more direct route was contrary to ex-

press instruction of.the defendant corporation.

The jury could find, however, that the only instructions

given to Glogowski were to proceed from the Draper

storehouse in Framingham to South River or Trenton,

New Jersey. The defendant Glogowski so testified.

(R. 176, 179). Such were the limit of the instructions

given to Glogowski as included in the answer of the de-

fendant corporation to the interrogatory relative to any

directions given Glogowski in respect to the trip in ques-

tion. (R. 225.) The sole evidence that any instruction was

given Glogowski as to the route to be taken by him was

the testimony of the corporation’s witness, McCarthy, to

the effect that he told Glogowski to take Route 9 to Route

20. (R. 234.) The jury were not required to believe this

testimony of the defendant’s witness, even if it were un-

contradicted. McDonough v. Vozzela, 247 Mass. 552, 558.

17.

Duff v. Webster, 315 Mass. 102, 103. Moreover, the latter

testimony was contradicted as above stated; and was

greatly discredited on cross-examination of the witness.

(R. 238 ff.)

Concerning the argument of the defendant corporation

that Glogowski did not take the most direct route from the

intersection of Route 126 and 9 to the intersection of Route

20 with 9, it should be noted at the outset that the jury

could disbelieve the testimony of the police officer Donnelly

to the effect that the distance between the two above stated

intersections via Route 9 was 15 miles, whereas the distance

between the same two points via Route 126 and 20, was

25 miles. (R. 64.) Under such circumstance there was no

evidence binding on the plaintiff that Glogowski took a less

direct route to the junction of Route 9 and 20. Moreover,

the testimony of Donnelly was to the effect that the distance

between the two junctions in question via Wayland and

Sudbury would be about 28 miles. (R. 64.) ‘‘The jurv could

find that such evidence was not evidence of the distance be-

tween the two points in question via Wayland and Marlboro,

which was established by previous evidence to be another

means of travel between the same two points’’. In this

state of the record it cannot be said that there was evi-

dence, even if it was binding on the plaintiff, that the route

which Glogowski was travelling to the junction of Routes 20

and 9 was less direct than via. Route 9, or in any event, that

the former means of travel was 13 miles longer than the

latter and the means of travel which the jury could find Glo-

gowski was following.

However if it be assumed on the state of the record [and

the plaintiff does not concede this point] that there was tes-

timony, and testimony by which the plaintiff was bound,

that Route 126 to Route 20 in Wayland and thence to New

Jersey, which course Glogowski could have been found to

18

be pursuing, was a route of travel 13 miles less direct than

Route 9 to the same destination, such isolated facts did not

on all the circumstances require a finding as a matter of

law that Glogowski was acting outside the scope of his

employment in following the less direct route.

‘‘Deviations by a servant from the regular course, as

travelling by a longer route than is required to reach

his destination in the performance of his master’s busi-

ness, is not conclusive evidence that he is not then act-

ing within the scope of his employment.’ ~

Mathewson v. Edison Electric Illuminating Co. of

Boston, 232 Mass. 576, 581.

Fleischner v. Durgin, 207 Mass. 435, 426.

Hayes v. Wilkens, 194 Mass. 223, 226.

- Reynolds v. Denholm, 213 Mass. 576, 578.

Lewandowski v. Cohen, 237 Mass. 125, 126.

McKeever v. Ratcliffe, 218 Mass. 17, 20, 21.

See also:

Ouimete v. Harris, 219 Mass. 466, 470.

Hayes v. Lumberman’s Mutual Casualty Co., 310

Mass. 81, 84.

‘In by far the greater number of such cases where

the master’s responsibility turns, as in the present

case, principally upon the mere extent of deviation, the

question is and must remain a question of fact depend-

ing upon the degree of diviation and all the attendant

circumstances”’’. . . In order to determine or suspend

the master’s responsibility there must be ‘‘not merely

deviation, but a total departure from the course of the

master’s business, so that the servant may be said to

be ‘on a frolic of his own’.”’

Ritchie v. Walker, 63 Conn. 155, 161, 162 (cited

with approval in Mathewson v. Edison Elec. Ill.

Co., 232 Mass. 576, 581).

Riley v. Standard Oil Co., 231 N. Y. 301, 305, 306,

(cited in support of Cummings v. Republic Truck

Co., 241 Mass. 292, 294, 295).

19

In the instant case there was evidence of comparison be-

tween Route 9 (the Worcester Turnpike) and Route 20 as

respected the volume and type or character of traffic that

moved along these respective routes at the approximate

time of day at which the accident occurred, in the vicinity of

the location of the accident, in and around the Town of

Framingham, and thence out to New York. The jury could

find from the testimony that on the average day, between

2:00 and 3:30 in the afternoon, as traffic moved on these

respective routes in and around the Town of Framingham

and thence out to New York, Route 9 (the Worcester Turn-

pike) carried the heaviest volume of traffic as compared

with Route 20 (R. 66, 67, 68); that regarding the character

and type of traffic that moved along these two highways on

the average day, the heaviest traffic at such hours of the

day was trucks and such heaviest traffic went on Route 9

(R. 67, 68) ; that on the average day of the week in the after-

noon, around two, three or four o’clock, or between the

hours of two and four, you get such heavy traffic on Route 9

that there is a continual flow of trucks and cars moving

both directions fifty feet apart or so, continuously (R. 68),

—‘very heavy traffic’’ (R. 68),—‘‘a flowing and continual

stream of traffic’’ (R. 69) ; that such vehicles ‘‘are stepping

right along’’ (R. 69); that two thousand vehicles an hvur,

four thousand between the hours of two and four in the

afternoon every average day during the week, travel along

the turnpike or Route 9 going by a given point thereon; that

at that time of day the largest percentage, 75 to 80 per cent,

of such vehicles are trucks, the majority of them going west

towards New York. (R. 69.)

Respecting the volume and character of hills along these

two different routes to the junction of Route 9 with Route

20, there was evidence that Route 20 had less hills than

—_—__

ay

20

Route 9, (R. 43) and less hills of considerable height to the

apex than Route 9 (R. 43); that Route 9 had some very

steep hills on it (R. 42); that there was one steep hill on

Route 20 coming into Marlboro, but that Route 9 on the way

to Worcester had five or six very steep hills (R. 43, 44).

The vehicle being operated by Glogowski was a big Auto-

ear truck attached or linked to a Freuhauf tractor-trailer,

(R. 176, 24, 25) which were two separate units. (R. 60.)

The truck and trailer was 40 feet long. (R. 236, 141.) The

tractor was 12 feet wide from wheel to wheel. (R. 142.) The

trailer was 30 feet long (R. 20), about 8 feet wide (R. 177,

178, 236), 7% feet high, from the floor thereof, and 11 feet

9 inches high from the ground. (R. 178, 236.) The trailer

was heavily loaded—, overloaded—, (R. 97, 130) with large

and heavy bales of wool, which bales were 15 feet long, and

6 feet wide (R. 142, 176, 20, 31, 61) and weighing at least

40,000 pounds.

It is a matter of common knowledge that motor trucks,

(particularly a large tractor-trailer of the latter dimensions

heavily loaded with wool) can be operated much more easily,

quickly and safely over a road with little or no traffic, no

hills, or no very steep hills, than over a road where their

progress is impeded by the presence of hills or very steep

hills, and the presence of a continual flow or stream of other

vehicles and traffic, especially when the greatest percentage

of such traffic is heavy traffic of the truck and trailer charac-

lor.

‘These are proper matters to be considered in de-

termining whether the deviation from a regular or more

direct route is an abandonment of the master’s busi-

ness. . . . The jury may have found that the driver in

adopting the course he took under the foregoing cireum-

stances, chose the quickest and best way to reach his

destination, and that by so doing he had not abandoned

—

—

21

his master’s business but was acting in the course of

his employment.”’

Mathewson v. Edison Electric Illuminating Co.,

232 Mass. 576, 581, and cases cited.

Hayes v. Wilkens, 194 Mass. 223, 226.

Lewandowski v. Cohen, 237 Mass. 125, 126.

Ritchie v. Walker, 63 Conn. 155, 161, 162.

Riley v. Standard Oil Co., 231 N. Y. 301, 305, 306.

A finding that Glogowski chose ‘‘the quickest and best

way to reach his destination’’ was similarly warranted by

the evidence of the declarations of Glogowski respecting his

intention or state of mind in travelling on Route 126 at the

time and plaec of the accident. These statements were, in

substance, that he was going to New Jersey (R. 127), and

that he took Route 126 to Route 20 towards Worcester be-

cause he could ‘‘open it up’’ on Route 20 (R. 93, 97, 98),

that Route 20 was ‘‘much better, not as congested as the

other route’’ (R. 97, 98) and he could ‘‘make better time.’’

(R. 127.) His intention in this respect was material.

Mathewson v. Edison Elec. Ill. Co. of Boston, 232

Mass. 576, 580, 582.

Furthermore, even if the foregoing deviation was not

fully warranted by the circumstance that Route 9 towards

Worcester was much more congested and hilly than Route

126 and Route 20, such deviation of the driver from the

more direct route of travel could be found by the jury to

have been ‘‘slight”’ and ‘‘comparatively insignificant’’ when

viewed in connection with the trip he was authorized to make

to his ultimate destination all the way down to New Jersey.

In this respect it must be noted that Glogowski’s devia-

tion from Route 9 at the time of the accident was a mere

one-half or one mile. That was the distance from the in-

tersection of Route 126 and Route 9 to the scene of the

——

22

accident. (R. 47, 143.) The degree or extent of the servant’s

deviation is determined with reference to his actual devia-

tion at the time and place of the collision, notwithstanding

‘‘any unexecuted intention [on his part] to deviate further

from the [more] direct route,’’ Fitzgerald v. Boston &

Northern Street Railway, 214 Mass. 435, 489; Pigeon’s

Case, 216 Mass. 51, 54. The jury could indisputably find

that a deviation of one-half or one mile was ‘‘slight’’ and

‘‘ecomparably insignificant.’”’

However the same finding would be warranted if the ex-

tent of his deviation is considered with reference to the |

distance the jury could find he intended to travel before

he rejoined Route 9, which deviation, it may he here as-

sumed, the jury could have found to have been 13 miles.

The source of Glogowski’s authorized trip was Plainville.

(R. 176, 179.) From there he travelled 27 miles to Dra-

per’s in the Town of Framingham (R. 235) and thence

approximately 2 miles to the intersection of Route 126 with

Route 9. (R. 45.) Route 9 from the latter point to its june-

tion with Route 20 outside of Worcester was at least 15

miles. (R. 64.) It is a matter of common knowledge of

which the court will take judicial notice that Framingham,

Mass., is an outlying suburb of the City of Boston, Town

of Burlington v. Dunn, 318 Mass. 216, 221, and that the dis-

tance from Boston to Trenton, New Jersey, exceeds 250

miles, at a very conservative estimate. 1947 World Al-

manac, p. 728 [Boston to Trenton, N. J., 296 miles; [bid

p. 727, Boston to New York, N. Y., 221 miles]; Hoyt v. Rus-

sell, 117 U. S. 401, 404, 405; The Wahkeena, 51 F. (2d) 106,

108, and cases cited. In Re New Hampshire Development

Co., 62 F. Supp. 726, 727. Under such circumstances Glo-

gowski’s intended deviation of (allegedly) 13 miles was not

so disproportionate to the length of the trip he was au-

thorized to make as to amount to an abandonment of his

—

23

employment terminating his master’s responsibility for

his negligence.

Fleischner v. Durgin, 207 Mass. 435, 436.

Lewandowski v. Cohen, 237 Mass. 125, 126.

Reynolds v. Denholm, 213 Mass. 576, 578.

Cummings v. Republic Truck Co., 241 Mass. 292,

294, 295.

Considering the long distance involved, considering that

there was no time allotted Glogowski within which he was

to make the trip, and having in mind that the truck when

it left Draper’s was heavily loaded with wool for delivery

to New Jersey, the jury could properly find that Glogowski

had not abandoned the performance of his duty and was

acting the main in furtherance of the business of his

employer in transporting the wool to New ‘ersey.

Riley v. Standard Oil Co., 231 N. Y. 301, 304-306

(followed in Cummings v. Republic Truck Co.,

241 Mass. 292, 294, 295).

Ritchie v. Walker, 63 Conn. 155, 161, 162.

Sawyer’s Case, 315 Mass. 75, 79.

There is no merit in the defendant corporation’s further

contention that at the time of the accident Glogowski was

as a matter of law acting outside the scope of his employ-

ment or on an independent project of his own in taking on

the sailor, Chasse, as a rider.

There was no evidence binding on the plaintiff that in

picking up a rider Glogowski was acting in violation of

any rule or instruction of the defendant corporation. The

jury could discredit the testimony of the defendant Glo-

gowski that he ‘‘was not allowed riders’’, (R. 180) even

if such testimony was properly susceptible of the inter-

pretation that there was a rule of the corporation prohibit-

ing riders. See Sawyer’s Case, 315 Mass. 75, 79, 80.

a

ANOLE IO IIS OP IPT I ote

24

In any event since the jury could find that in travelling

along Route 126 through Saxonville towards Route 20,

Glogowski was travelling on a route which he could rea-

sonably be expected by his employer to take in the per-

formance of his duty in transporting the wool to New Jer-

sey, the fact that at the time of the accident there was a

rider on the truck who had been taken on contrary to a

rule of the employer, could be found to be nothing more

than a condition or attendant circumstance not in any

way in derogation or attenuation of Glogowski’s main or

sole purpose to perform his above stated duty.

Cummings v. Republic Truck Co., 241 Mass. 292,

295.

Donahue v. Voremberg, 227 Mass. 1, 5, 6.

Mathewson v. Edison Electric Illuminating Co.,

232 Mass. 576, 580, 581.

Sawyer’s Case, 315 Mass. 75, 80.

The decision in O’Leary v. Fash, 245 Mass. 123, 125, cited

by the defendant, is distinguishable. The difference in the

liability of an employer to a passenger, who is allowed by

an agent to ride on the employer’s motor vehicle without

the authority and consent of the employer, and the liability

of an employer to a person who is run down in the street

by an agent transporting a rider, is pointed out in that case

and also in Driscoll v. Scanlon, 165 Mass. 348, 349.

What has been above stated disposes of the defendant

corporation’s suggestion that Glogowski pursued Route 126

beyond the Turnpike merely to transport the sailor to his

home and for no other apparent purpose related to his

employment. In this respect, however, there was evidence

that the place where the sailor boarded the truck was be-

yond the Turnpike on the Saxonville side headed towards

Saxonville (R. 136, 138, 140); that the rear of the truck

25

(which was 40 feet long) was at that time 100 feet beyond

the northerly line of the Turnpike. (R. 141.) Moreover,

the sailor was going home on an overnight pass; he didn’t

know Glogowski and had never seen him before. (R. 141.)

When he got on the truck it started up promptly. ‘‘Glogow-

ski asked him where he was going. The sailor said Saxon-

ville. Glogowski proceeded.’’ (R. 180.) There was no

further talk as to where the rider was going (R. 142), and

no talk with the driver relative to the sailor’s address in

Saxonville or as to how he would get from Route 126 to

Danforth Street on which the sailor lived. (R. 166.) The

foregoing testimony clearly substantiates the permissible

finding of the jury that Glogowski, at the time he picked

up the rider, was already on his way on Route 126 towards

Saxonville in the performance of his duties, and repels

the inference that he had abandoned such duties under all

the circumstances for the mere accommodation of a person

who was a complete stranger and whose address in Saxon-

ville was unknown to him. (See Sawyer’s Case, 315 Mass.

75, 79.)

Respecting the corporation’s contention that Glogowski

was acting outside the scope of his employment in that,

at the time of the accident, he was violating the rate of

speed limitations prescribed by the Office of Defense Trans-

portation, it is sufficient to state that such a suggestion is a

reductio ad absurdum’’. There was no evidence in the

record that any speed limitations were imposed on Glo-

gowski by the corporate defendant itself. It would follow

from the proposed argument that any servant or agent who

violated any provision of law relative to the operation of

motor vehicles, would ipso facto abrogate his employer’s

liability for his negligent acts contrary to the well establish-

ed rules of respondeat superior. Moreover, there is no

26

evidence in the record that the defendant corporation was

a carrier in interstate commerce subject to the regulations

of the Federal Office of Defense Transportation, and such

a fact cannot be assumed.

Il. Tue Deciarations or GLocowsk1 WERE ADMISSIBLE IN

EvIpENCE.

The trial judge did not err in ruling that the subsequent

declarations of Glogowski contained in his conversation

with Davis could be taken into consideration by the jury

as evidence of Glokowski’s state of mind, purpose, or in-

tention in travelling over Concord Street at the time of the

accident as bearing on the question whether he was then

engaged in the scope of his employment.

Glogowski’s intention in this respect was material.

Mathewson v. Edison Electric Illuminating Co.,

232 Mass. 576, 580, 582.

‘*In determining questions [of evidence], a federal

trial court has great latitude under Rule 43(a) of the

Federal Rules of Civil Procedure, 28 U.S. C. A. follow-

ing section 723c, which provides, in material part, that

the statute or rule, federal or state, which favors the

reception of proffered evidence shall govern its admis-

sibility’’. Norwood v. Great American Indemnity Co.,

146 F. (2d) 797, 799. A federal court ‘‘must apply the

more generous rule of evidence’’. Worcester County

Park Commission v. United States, 143 F. (2d) 688,

_ 694, 695.

Where the state of mind, purpose or intention of a person

at a particular time, or in doing a particular act, is in issue,

his declarations showing such intention, whether prior, con-

temporaneous or subsequent, are properly admissible if

sufficiently near in point of time to afford a reasonable in-

ference that such was his intention at the time in question.

This is the firmly established rule in Massachusetts. Pick-

— |

—

27

ens v. Davis, 134 Mass. 252, 257, 258. Lane v. Moore, 151

Mass. 87, 89, 90-92. Aldrich v. Aldrich, 215 Mass. 164, 170.

Commonwealth v. Trefethen, 157 Mass. 180, 186, 190.

Shailer v. Bumstead, 99 Mass. 112, 122, 123. Crosby v.

Mutual Life Ins. Co., 221 Mass. 461, 463, 464. Common-

wealth v. Damon, 136 Mass. 441, 448, 449. Hagar v. Norton,

188 Mass. 47, 52. Brady v. Doherty, 253 Mass. 518, 522.

Mahan v. Perkins, 274 Mass. 176, 179. Malone v. Walsh,

315 Mass. 484, 490. Wigmore, Evidence (3rd Ed.), Vol.

VI, #1729, p. 91, #1714, p. 60, #1726 (2), pp. 87, 88; Vol.

II, #7233, 241, 242(3).

Such declarations made with no apparent motive for mis-

statement may be better evidence of the maker’s state of

mind at the time, then the subsequent testimony of the

same persons.

Elmer v. Fessendon, 151 Mass. 359, 362.

Starkie, Evidence, (10th Am. Ed.) 89.

Wigmore, Evidence, (3rd Ed.) #1714, Vol. VI,

p. 60.

In accordance with the foregoing cases the declarations

of Glogowski relative to why he was travelling on Con-

cord Street on Route 126 at the time of the accident, and

relative to why, in his experiences as a truck driver, he

ordinarily travelled on such route on his way towards

Worcester, were equally admissible in evidence as indicat-

ing his probable state of mind, purpose or intention in

taking such route at the time of the accident. Cases cited

ante. Also: Partridge v. Umted Elastic Corp., 288 Mass.

138, 141. Inness v. Boston Revere Beach & Lynn R. R. Co.,

168 Mass. 433, 434, 435. Comm. v. Ramey, 243 Mass. 394,

397, Comm. v. Rubin, 318 Mass. 587, 588, 589.

Whether such declarations were sufficiently near in point

of time to have some natural bearing upon his state of

Ne AN

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28

mind or intention at the time of the accident was a prelim.

inary question of fact largely within the discretion of the

trial judge. His determination of this preliminary ques-

tion must be accepted as conclusive on the circumstances

of the instant case, such declarations being made only

three to ten days after the accident.

. Lane v. Moore, 151 Mass. 87, 91.

Comm, v. Trefethen, 157 Mass. 180, 185, 184.

McCoy v. Jordan, 184 Mass. 575, 576, 577.

Howes v. Colburn, 165 Mass. 385, 387.

The declarations were admissible against the corporate

defendant. They indicated the servant’s intention or state

of mind in travelling over Route 126 at the time of the acci-

dent, which intention or state of mind was a fact relevant

to the fact in issue, whether he was at such-time engaged

in the course of his employment by the corporate defend-

ant. They were not direct evidence of the external fact

that he was so engaged, but merely circumstantial or evi-

dential, to be considered in connection with all the other

circumstances in the case bearing upon the question. As

such, the declarations evidencing his intention constitute

an exception to the hearsay rule, are admissible in evidence

though not technically forming part of the res gestae, and

are not subject to the rule that declarations by an agent

in the nature of direct admissions of liability are not bind-

ing on the principal in the absence of independent evidence

of the authority of the alleged agent to make them. Lane

v. Moore, 151 Mass. 87, 90,91. Pickens v. Davis, 134 Mass.

252, 257, 258. Comm. v. Trefethen, 157 Mass. 180, 185, 186,

188. Aldrich v. Aldrich, 215 Mass. 164,170. IJnness v. Bos-

ton, Revere Beack & Lynn R. R. Co., 168 Mass. 433, 434,

435. Pickens v. Davis, 134 Mass. 252, 257, 258. Potter v.

Baldwin, 133 Mass. 427, 428, 429. State v. Journey, 115

Conn. 344, 351, and eases cited. Jn Re Coleman, 53 Idaho

29

339, 343, 344. Wigmore, Evidence (3rd Ed.) Vol. VI,

#1715, p. 62; #1726, pp. 87, 88.

See Restatement, Agency, #289, Comment C.

‘“Staiements of state of mind. Evidence of state-

ments by an agent introduced in order to show the

purpose for which he did an act or to show his knowl-

edge or state of mind is admissible in favor of and

against the principal (italics ours) under the rules

relating to the introduction of evidence for this pur-

pose. Statements by an agent are not excluded be-

cause made by an agent. If his knowledge or state

of mind or purpose is relevant to the cause of action

which is being brought, either party may introduce

evidence relevant to show this.”’

The same rule obtains in the federal courts respecting

the admissibility of declarations evidencing state of mind,

purpose or intention at a particular time or in doing a par-

ticular act. Lawler v. Loewe, 235 U. 8S. 522, 536. ‘Such

statements, though hearsay, are admissible to prove the

state of mind of the declarant if that be in issue.’’ Greater

New York C. of C. v. U. S., 47 F. (2d) 156, 159. ‘*Such evi-

dence is an exception to the hearsay rule, and is well recog-

nized.’?’ American Cooperative Serum Ass’n v. Anchor

Serum Co., 153 F. (2d) 907, 912 (1946) and cases and au-

thorities cited. ‘It is well established that the state of a

person’s mind on a certain date may be proved by his sub-

sequent statements and declarations.’’ U. S. v. Schuch-

hardt, 49 F. Supp. 567, 568 (1943) and cases cited. U. 8.

v. Joqwick, 51 F. Supp. 2, 3. Glaser v. United States, 289

F. 255, 256, cert. denied, 263 U. S. 700. U.S. v. Schlotfeldt,

136 F. (2d) 935, 938. See Buckeye Powder Co. v. DuPont

Powder Co., 248 U. 8. 55, 65. See also: Tobin v. Walkin

Shaw, 23 F. C. 1346, 1347, 1348, (C. C.), Fed. Cas. No.

14,070. Hawes v. Victoria Mining Co., 160 U. S. 303, 318.

Arab Corporation v. Bruce, 142 F. (2d) 604, 608, note 9.

National Labor Relations Board v. Southern Wood Pre-

—_—_

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30

serving Co., 185 F. (2d) 606, 607. Chicago and N. W. Ry.

Co. v. McKenna, 74 F. (2d) 155, 157. Kerr v. Modern

Woodmen of America, 117 F. 593, 595. U.S. v. Gentry, 119

F. 70, 73. U.S. v. Wells, 283 U. S. 102,113. Bankers Trust

Co. v. Higgins, 65 F. Supp. 836, 839. Wright v. Bragg, 106

F, 25.

The substance of Glogowski’s remarks was that he took

Route 126 to Route 20 ‘‘over there’? to Worcester and New

Jersey because the latter route was not as congested as

Route 9 and that in his opinion he could make better time

on Route 126 and Route 20. Such evidence was admissible

to show Glogowski’s belief, state of mind, motive or inten-

tion in following one route rather than the other. It is true,

as argued by the petitioners, that such declarations were

not admissible to prove the truth of the facts recited there-

in, viz. that Route 20 was in fact less congested than Route

9 and that better time could in fact be made on Route 20

than on Route 9. Lane v. Moore, 151 Mass. 87, 90. But

since the petitioners did not ask for an instruction limiting

the probative force of the evidence to the issue of state

of mind, but attempted rather to exclude the evidence en-

tirely, they cannot now claim error in its admission,

Greater New York Live Poultry Chamber of Commerce v,

United States, 47 F. (2d) 156, 159 (C. C. A. 2) and cases

and authorities cited. Kilmer v. Fessenden, 151 Mass. 359,

361. Hubbard v. Allyn, 200 Mass. 166, 171. Weston v.

Barnicoat, 175 Mass. 454, 456. Palmer v. Hoffman, 318

U. S. 109, 119 and cases cited. Eastman v. U. S., 153 F.

(2d) 80, 84; cert. denied 66 S. Ct. 1342. Rule 51 (F. R.

C. P.). Salonen v. Paanenem, 1947 Mass. Ad. Sh. 29, 36.

Sylvester v. New York, New Haven d Hartford R. R.,

217 Mass. 148, 152, Jackson v. Colonial Provision Co., Inc.,

314 Mass. 177, 179, 180, and Du Bois v. Powdrell, 271 Mass.

31

394, 397, cited by the defendant as authority for the propo-

sition that an agent may not by his own declaration show

the nature and extent of his authority, are inapplicable

here. The declarations in the instant case were not declara-

tions of the latter character; nor was the nature and extent

of Glogowski’s authority a question in dispute. See Nowell

v. Chipman, 170 Mass. 340, 343, 344.

Conklin v. Consolidated Railway, 196 Mass. 302, is also

distinguishable from the instant case. The state of mind

or intention of the agent in that case was not an issue or

a fact relevant to a fact in issue. The fact in issue was’

whether the agent assaulted the plaintiff. The intention or

state of mind of the agent at the time of the assault, or the

intention or state of mind with which he committed the

assault, was entirely irrelevant and immaterial on the

issues involved. Lane v. Moore, 151 Mass. 87, 90. Pickens

v. Davis, 134 Mass. 252, 257, 258. As pointed out in Bonino

v. Caledonio, 144 Mass. 299, 302 (which case is stated in the

Conklin case, p. 307, to be exactly the converse of the situa-

tion presented in the Conklin case) ‘‘no substantive question

of intention was involved in the proof that the defendant

first assaulted the plaintiff, which would make evidence of

a (prior intention) competent in proof of that fact’’. See

also for adverse comment on the Conklin case, Wigmore,

Evidence (3rd Ed.) #106, note 1 (cited in the opinion of

the Cireuit Court).

III. Tue Apmission or Sucn Evivence, Even ir TEecu-

NicaLLY Erroneous, Dip Nor Conerirure Harmrut Error.

A. The Corporate Defendant Waived its Objections to

the Competency of the Evidence.

Assuming that there may have been any technical error

of law in the judge’s ruling in his charge to the jury respect-

ing the testimony of the conversation had between Glogow-

32

ski and Davis, any such assumed error cannot be availed of

by the corporate defendant as a ground for reversal or the

granting of a new trial. The objections taken by counsel

for the defendants to the admission of such testimony in

direct examination of the plaintiff and the witness Davis

cannot be sustained as a ground for exception to the charge,

even if erroneous, for the reason that without objection or

exception both witnesses later testified to identically and

substantially the same conversation,—and more—, on cross-

examination by counsel for the defendants. It has been

repeatedly held in Massachusetts and in the Federal Courts

that, where identical or similar testimony is brought out

in eross-examination without objection or exception, or

reservation thereof, the objection made in chief is waived

and abandoned and the testimony becomes competent evi-

dence entitled to its full probative value on all issues in the

case to which it is applicable, as if no prior objection lay to

its admission. Didngelo v. United Markets, Inc., 319 Mass.

143, 145. Commonwealth v. Parrotta, 316 Mass. 307, 312,

313. Commonwealth v. Capalbo, 308 Mass. 376, 382.

Bendett v. Bendett, 315 Mass. 59, 65, 66. Commonwealth v.

Mannos, 311 Mass. 94, 114, 115. Ryder v. Board of Health

of Lexington, 273 Mass. 177, 179, 180. Morrison v. Lawrence,

186 Mass. 456, 458. Perivoliotis v. Eveleth, 251 Mass. 444,

446, 447. Mathewson v. Edison Electric Illuminating Co.,

232 Mass. 576, 582. Noyes v. Gagnon, 225 Mass. 580, 588.

Mass. G. L. (Ter. Ed.) C. 231, #132. Trouser Corporation

v. Goodman & Theise, 153 F. (2d) 284, 287, 288. Norwood

v. Great American Indemnity Co., 146 F. (2d) 797, 799, 800.

United States v. Fried, 149 F. (2d) 1011, 1013, Westchester

County Park Commission v. United States, 143 F. (2d) 688,

694, 695; cert. denied, 323 U. S. 726. Milwaukee Mechanics

Ins. Co. v. Oliver, 139 F. (2d) 405, 407. Snipes v. Augusta-

Aiken Ry. & Elec. Co., 151 8. C. 391, 396.

—

For examples:

In DiAngelo v. United Markets, Inc., 319 Mass. 143, at

145, the court stated, in disposing of an exception taken by

the defendant to certain testimony elicited in direct exam-

ination of the plaintiff :

‘‘This exception cannot be sustained because without

objection she [plaintiff] later testified in identical lan-

guage on cross-examination.”’

Commonwealth v. Parrotta, 316 Mass. 307, 312

(same effect).

In Trouser Corporation v. Goodman & Theise, 153 F.

(2d) 284, 287, 288 (C. C. A.), in which certain statements

made by an agent were held to be erroneously admitted in

evidence as against his employer over the objection of the

defendant in direct examination of the witness, the court

said, pp. 287, 288:

‘*But the defendant waived this objection. In cross-

examination of the [same] witness—the defendant

asked for the [same] statement. Objection to com-

petency is lost if the objecting party himself offers the

same testimony as evidence.’’

In Norwood v. Great American Indemnity Co., 146 F.

(2d) 797, 799, 800 (C. C. A.), the court held that admission

of testimony in direct examination of the plaintiff over

objection of counsel for the defendant, even if erroneous,

did not affect the substantial rights of the parties under

Rule 61 of the Federal Rules of Civil Procedure (28

U.S.C. A. ff. #728) or Sec. 269 of the Judicial Code, as

amended (28 U. S. C. A. #391), for the reason that:

‘“‘The record discloses that on cross-examination of

the plaintiff, appellant’s counsel elicited substantially

the same evidence, concerning the conversation to

SS i — :

COOP OLE

fA

34

which the plaintiff had previously testified in direct

examination over the objection of the [appellant].

. . . In these circumstances, . . . whatever error may

have been committed in admitting evidence in the first

instance, the error became harmless in the sense that

it became unavailing to the appellant as a ground for

reversal.”’

In the instant case although the testimony in question

had been previously objected to by counsel for the defend-

ants, it was subsequently voluntarily adduced in behalf of

the defendants without objection or exception, or reserva-

tion thereof, on cross-examination of the same witnesses.

On cross-examination of the plaintiff relative thereto, coun-

sel for the defendants examined the witness fully and

exhaustively respecting the same conversation, asked the

witness to state the entire conversation, to repeat and re-

iterate it in every detail ;—whereupon the plaintiff testified

to the identical conversation elicited on direct examination;

also to further statements made by Glogowski at the time

with respect to the latter’s purpose or motive in taking

Concord Street (Route 126) to Route 20, in preference to.

Route 9; and also to further statements made by Glogow-.

ski at the time bearing on the question of negligence of both

the corporate and the individual defendant in the mainten-.

ance and operation of the motor truck at the time of the

accident, which further statements constituted original evi-

dence not theretofore introduced by the plaintiff. Substan-

tially the same procedure was followed by counsel for the

defendants in cross-examination of the witness Davis rela.-

tive to the same conversation.

Under such circumstances counsel for the defendants

waived and abandoned his prior objection to the admission

of the evidence in question. So far as the record goes, the

testimony on the same subject matter adduced on cross:-

35

examination of the witnesses without objection or excep-

tion, or reservation thereof, as well as the testimony of

additional statements made by Glogowski bearing on the

issue or negligence, remained evidence in the case as against

both the corporate and the individual defendant. Such

evidence was entitled to its full probative value or force as

evidence of the fact that the defendant Glogowski was

driving the truck in the scope of his employment by the

corporate defendant and in pursuance of its business in-

terests, irrespective of whether such testimony was

technically incompetent as against the corporate de-

fendant to establish the latter fact. Ventromile v. Malden

Electric Co., 317 Mass. 132, 135. DuBois v. Powdrell, 271

Mass. 394, 397. Do»alas v. Holyoke Machine Co., 233 Mass.

573, 575. Diae v. U. S., 223 U. 8. 442, 450. Jackson v.

Colonial Provision Co., 314 Mass. 177, 180. Incompetent

evidence which has been admitted without objection ‘‘re-

mains evidence in the case’’, Rapson v. Leighton, 187 Mass.

432, 435; Comm. v. Mannos, 311 Mass. 94, 115; Comm. v\

Capalbo, 308 Mass. 376, 382, 383, ‘‘is entitled to its natural

and full probative force on all issues in the case to which it

may be applicable’’. Ventromile v. Malden Electric Co.,

317 Mass. 132, 135; Pochi v. Brett, 319 Mass. 197, 203;

Comeau v. Beck, 319 Mass. 17, 19; Stearns v. Warren, 284

Mass. 268, 275; Spiller v. Atchison, Topeka & Sante Fe,

253 U. S. 117, 130, and ‘‘may be weighed with other evi-

dence and given any evidentiary value which it may pos-

sess’. Mahoney v. Harley Private Hospital, 279 Mass.

96, 100. Ryan v. DiPaolo, 313 Mass. 492, 494.

Consequently, the case falls within the rule that ‘‘the ad-

mission or exclusion of merely cumulative evidence that

adds nothing to evidence already in the case, does not re-

quire the sustaining of exceptions, even though there was

CENT TN S

were

36

technical error.’’ Bendett v. Bendett, 315 Mass. 59, 65, 66.

Abele v. Dietz, 312 Mass. 685, 690, 691. Comm. v. Mannos,

311 Mass. 94, 114, 115. Perivoliotis v. Eveleth, 251 Mass.

444, 446, 447.

‘“‘The original ruling of the trial judge [in direct

examination of the plaintiff and Davis limiting the

evidence of the conversation as against the defendant

Glogowski merely] had not become the law of the

trial—and did not preclude the admission of other

evidence of the conversation even on cross-examina-

tion of the same witnesses.’’ Comm. v. Parrotta, 316

Mass. 307, 312. DtAngelo v. United Markets, Inc., 319

Mass. 143, 145. Ryder v. Board of Health of Lexington,

273 Mass. 177, 179, 180.

In the latter connection it is to be noted that, although

the judge had previously ruled on direct examination of

the plaintiff that the evidence of the statements made by

Glogowski did not bind the corporate defendant, (R. 93)

the judge modified or qualified this ruling immediately

after the statements, previously objected ‘o, were elicited

on cross-examination of the plaintiff without objection or

exception or application for restriction of their use. At the

latter point in the trial the judge stated to the jury that

he would make an additional ruling later on with respect

to the probative foree that such conversation would have

with respect to the issues involved in the case. (R.

99.) Nor did the trial judge make any ruling with re-

spect to the evidence of the conversation in question when

culled in cross-examination of the witness Davis. Since

at such stage of the trial, the prior objections to the con-

versation were waived and abandoned by counsel for the

defendants, due to his cross-examination covering the same

subject matter, and since at such time the evidence was

entitled to its full probative value against the corporation

both on the issue whether Glegowski was acting within the

37

scope of his employment, and on the issue of negligence,

the corporate defendant cannot be heard to complain of

the judge’s charge to the jury, in which he instructed them,

that the evidence was competent to show Glogowski’s state

of mind or intention as bearing on the issue of whether he

was acting within the scope of his employment. Under the

circumstances the instruction was more than favorable to

the corporate defendant who had lost his right to object

to the evidence of the conversation on all issues in the case,

and it cannot be heard to complain of the ruling sufficiently

favorable to it.

In brief, the exception to the charge in the above respect

taken by counsel for the defendants was of no avail to the

corporate defendant. Its objection to the competency of

the evidence was waived and lost. The evidence brought

out on cross-examination was entitled to its full probative

force at the time of the defendant’s exception to the charge.

It was too late then to save an exception respecting compe-

tency. Ryder v. Board of Health of Lexington, 273 Mass.

177, 179. Cummings v. National Shawmut Bank, 284 Mass.

563, 568. Orpin v. Morrison, 230 Mass. 529, 532. Randall

v. Peerless Motor Car Co., 212 Mass. 352, 384. Comm. v.

Johnson, 199 Mass. 55.

The corporate defendant contends that the foregoing

rule relative to waiver of a prior objection by cross-exam-

ination eliciting the same subject matter, is inapplicable as

against the corporate defendant on the circumstances of

this case. It is argued that the same attorney acted as

counsel for Glogowski and the corporate defendant; that

since at the time of the cross-examination of the witnesses

relative to the declarations in question there was in effect

a prior ruling by the trial judge limiting the evidence of

such declarations solely as against the defendant Glogow-

atrget we

eT et ee eee

38

ski, there was no occasion for cross-examination in behalf

of the corporate defendant, and it must be assumed that in

cross-examining the witnesses counsel was acting for and

in behalf of the individual defendant Glogowski alone.

But we have seen that the original ruling by the trial judge

had not become the law of the case Janback v. Aamunkoitto

Temp. Soc., 273 Mass. 45, 50. Comm. v. Parrotta, 316 Mass.

307, 312, and did not preclude the doctrine of waiver by

cross-examination eliciting the same subject matter.

Comm. v. Parrotta, 316 Mass. 307, 312. Di Angelo v. United

Markets, Inc., 319 Mass. 143, 145.

And quite contrary to the above suggestion of the cor-

porate defendant, it must be assumed that the cross-exam-

ination relative to the remarks of Glogowski was being

conducted in behalf of the corporate defendant alone since

the state of mind or intention of Glogowski was entirely

immaterial and irrelevant in the case against Glogowski.

Or, at best, it must be assumed that the attorney who was

representing both defendants during the trial of the case,

was representing both defendants at all stages thereof,—

including the occasion of his cross examination of witnesses

relative to the remarks of Glogowski—, unless and until it

was specifically brought to the attention of the court that

he was acting solely in the interest of one of the defendants.

The question whether counsel was representing one or both

of the defendants cannot be determined by considering the

advisability or sagacity of his representing one or both of

the defendants. Nor can it be determined by the undis-

closed intention of counsel. It is a fundamental and well

established rule that when there are two or more parties,

or two or more cases are tried together, evidence offered

is admissible as against all parties unless application is

made for restriction of its use as against designated par-

_

39

ties. Solomon v. Dabrowski, 295 Mass. 358, 359, 360. Comm.

v. Shephard, 313 Mass. 590, 598. Palmer v. Hoffman, 318

Mass. 109, 119 and cases cited. Eastman v. U. S., 153 F(2d)

80, 84, cert. denied, 66 S. Ct. 1342. U.S. v. Daily, 139 F(2d)

7,9. Rule 51 (F. R. C. P.) 28 U. S.C. A, ff. #723c. The

latter rule is applicable here. If the corporate defendant

wished to obviate a waiver by it of its prior objections

under the doctrine of the Di Angelo and Parotta cases, it

was incumbent upon counsel acting for both defendants to

ask for a limitation or restriction to the individual defend-

ant alone of the evidence elicited in cross-examination.

B. The Exception to the Charge Was Not Validly

Taken.

Moreover the exception to the charge in itself, even

if it was not too late, was a general one without any appli-

cation made for restriction of the evidence. The declara-

tions made by Glogowski contained statements in the nature

of admissions, and otherwise, which were binding on Glo-

gowski on the issue of negligence. Such statements were

’ admissible in the count against him, even assuming that

they may have been incompetent to bind the corporate de-

fendant. Where several cases are tried together and evi-

dence is offered which is competent as to one or more par-

ties and not competent as to others, a general exception to

the charge based on the admission of such evidence cannot

prevail. The excepting party must call the attention of

the trial judge to any limitations which he believes should

be imposed upon the application of the evidence as to issues

and parties in order to save a valid exception. Potter v.

Baldwin, 133 Mass. 427, 428, 429. Solomon v. Dabrowskt,

295 Mass. 358, 359, 360. Comm. v. Shephard, 313 Mass. 590,

598. Salonen v. Paanenen, 1947 Mass. Ad. Sh. 29, 36.

aad

SRG RONEN ION IEL GE RE IIE

40

Palmer v. Hoffman, 318 U. 8. 109, 119 and cases cited. East-

man v. U. S., 153 F (2d) 80, 84; cert. denied 66 S. Ct. 1342.

U.S. v. Daily, 139 F (2d) 7,9. Rule 51 of the Federal Rules

of Civil Procedure (28 U. 8. C. A., ff. #723c). This the

corporate defendant failed to do.

C.d4D. The Evidence In Question Was Merely Cumula-

tive.

The admission of the evidence of the declarations of

Glogowski, even if erroneous, and assuming that such error

was not cured by the same evidence being elicited on cross-

examination by counsel for the defendants, did not in-

juriously affect the substantial rights of the corporate de-

fendant on another ground.

The remarks of Glogowski were material only insofar

as they tended to establish Glogowski’s state of mind or

intention in his traveling out of Framingham on Route

126 to Route 20, rather than on Route 9. His choice of one

Route in preference to the other was, in turn, significant

merely because of the corporate defendant’s contention

that he had deviated from the route specifically assigned

to him by his employer, which was allegedly Route 9. How-

ever, as previously pointed out, whether Glogowski was

given express instruction to pursue Route 9 out of Fram-

ingham was a question for the jury on contradictory evi-

dence, and the jury could find that no such instruction was

given him. The jury could find on abundant evidence that

at the time of the accident Glogowski was travelling with

his truck and trailer loaded with wool on a route out of

Framingham (126) which he reasonably could have been

expected to take by his employer,—a route which led di-

rectly to Route 20, which was described in the evidence

as a ‘‘through way’’, ‘‘a common highway for travel’’,

—

ail

and ‘‘a main route used for transportation into New York

and New Jersey’’. Such permissible findings of the jury

rendered entirely inconsequential the question why or

wherefore Glogowski did not take Route 9, rather than

Route 126 to Route 20, out of Framingham. Under such

cireumstanees reception of the testimony of the remarks of

Glogowski was entirely harmless and unprejudicial to the

corporate defendant.

41

Furthermore, the declarations of Glogowski bearing on

the question of his intent or state of mind in travelling

over Concord Street at the time of the accident were

in substance to the effect that he took Route 126 to Route

20 ‘‘over there’’ to Worcester because the latter route

was not as congested as the other route (the Turnpike)

and that he could make better time on Route 126 and

Route 20 to Worcester. Such evidence of his state of mind

or intention was merely cumulative of other ample and

abundant evidence in the record (relative to the comparison,

with respect to the volume and character of traffic and

volume and character of hills, between the two means of

travel to the intersection of Routes 9 and 20 outside of

Worcester) from which the jury could properly find or i-

fer the identical or substantially identical fact that Glo-

gowski’s purpose in travelling on the route he was on was

to make better time and avoid the congestion in traffic on

Route 9. For this added reason, the judge’s charge to the

jury relative to the declarations of Glogowski, even if

technically erroneous, could work no injury to the corporate

defendant. Inness v. Boston, Revere Beach and Lynn R. R.

Co., 168 Mass. 433, 435. Duggan v. Bay State Street Rail-

way, 230 Mass. 370, 383. Coneton v. Old Colony Street

Railway, 212 Mass. 28, 29. Comerford v. N. Y., N. H. &

H. R. R. Co., 181 Mass. 528, 530. Mathewson v. Edison

Pe ee