JAMES A. THOMPSON, administrator, vs. FLORENCE BELIAUSKAS (and a companion case ).

JAMES A. THOMPSON, administrator, vs. FLORENCE BELIAUSKAS (and a companion case [Note 1]).

341 Mass. 95

January 6, 1960 - May 12, 1960

Middlesex County

Present: WILKINS, C.J., SPALDING, WILLIAMS, COUNIHAN, & WHITTEMORE, JJ.

At the trial of an action against one in charge of a cafe to recover for the death of the plaintiff's intestate as a result of alleged negligence of the defendant, her agent, servant or employee, in causing an intoxicated person to be "thrown, pushed or hurled" through the front door of the cafe against the intestate, a signed statement of the defendant that she told the bartender to put the intoxicated person out and that the bartender "put him out--grabbed him and threw him out" was properly admitted in evidence as an admission. [97]

At the trial together of actions of tort against a corporation and an officer of the corporation, evidence clearly admissible against the individual defendant was competent for all purposes and against the corporation where there was only a general objection and exception to its admission. [97]

A mere objection to the admission of evidence, without the saving of any exception, at the trial of an action in the Superior Court presented no question to this court. [98]

At the trial of an action to recover for the death of the plaintiff's intestate as a result of alleged negligence of the defendant in causing an intoxicated person to be ejected by an employee of the defendant through the front door of a cafe and thrown against the intestate, answers by the plaintiff to interrogatories, stating that the intestate was sober and stating the name of the alleged employee, were improperly admitted in evidence under G. L. c. 231, Section 89, when offered by the plaintiff where none of the plaintiff's answers had been introduced by the defendant, but the admission of the answers introduced by the plaintiff did not prejudice the defendant since there was no evidence that the intestate was not sober and the person named by the plaintiff was not an employee of the defendant. [98]

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A finding in an action, that a corporation owning a cafe where liquor was served and an officer of the corporation in charge of the cafe were negligent and liable for the death of the plaintiff's intestate resulting when an intoxicated person ejected through the front door of the cafe by the bartender thereof was thrown against the intestate, was warranted by evidence that the individual defendant told the bartender to put the intoxicated person out and that the bartender "put him out--grabbed him and threw him out" using excessive force. [98]

TWO ACTIONS OF TORT. Writs in the Superior Court dated March 7, 1957.

The actions were tried together before Swift, J.

Gregory Sullivan, for the defendants.

Charles E. Cunningham, for the plaintiff.

WILLIAMS, J. These are actions of tort against the corporate owner of a cafe, called "Al's Cafe," and one of its officers for negligently causing the suffering and death of the plaintiff's intestate. Each declaration alleges that the defendant by an agent, servant or employee negligently caused one Quinn to be "thrown, pushed or hurled" through the front door of the cafe against the plaintiff's intestate who was passing by and that the plaintiff's intestate received injuries from which he died. There were verdicts for the plaintiff. We have before us exceptions by the defendants to rulings upon evidence and to the denial of motions for directed verdicts.

There was evidence that in the late afternoon of June 11, 1955, one Quinn was in the cafe of the defendant corporation on Massachusetts Avenue in Cambridge under the influence of liquor and was ejected therefrom in such manner and with such force that his body was thrown against the plaintiff's intestate who was passing on the sidewalk, causing injuries which resulted in death. The defendants contend that there was no competent evidence that the deceased was injured by a person for whose act either defendant was legally liable.

The defendant Florence Beliauskas was an officer of the corporation and at the time of Quinn's ejectment was in charge of the cafe. Called as a witness by the plaintiff she testified that she told the bartender Goodwin that Quinn

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was not to be served and that Goodwin told Quinn to leave. She denied that she told Quinn to get out or told anyone to throw him out. A signed statement given by her to Toomey, a police officer, on June 15, in which she said that she told Goodwin to put Quinn out and that "Goodwin put him out--grabbed him and threw him out," was admitted in evidence over the defendants' exceptions. This statement was obviously admissible against her as an admission, and since the objection and exception to its admission were general it was competent as evidence for all purposes and against the corporation. Solomon v. Dabrowski, 295 Mass. 358 , 359. Salonen v. Paanenen, 320 Mass. 568 , 575. See Palm v. Kulesza, 333 Mass. 461 , 463-464.

Quinn was also called as a witness by the plaintiff. He testified that Mrs. Beliauskas told him that he was not to be served; that the cafe was crowded; that he saw one Carl Garland, whom he knew, sitting in a booth drinking; that "the next thing he saw after Florence spoke to him `I was out on the sidewalk,' `I staggered out the door' . . . `I don't know if anyone pushed me or not'"; and that he bumped into the deceased as he was going by and knocked him down.

The judge ruled that the witness was hostile and over the objections of the defendants permitted counsel for the plaintiff to ask Quinn if he had not made certain statements to Officer Toomey, namely, "Florence was on the bar. She told me to get out. Carl grabbed me by the neck and seat of the pants and threw me out. I did not hear Florence say anything to Carl, to throw me out. I was in there five to ten minutes. I was drinking in Boston before I came over there. I was drunk. I remember everything that happened. I saw Carl coming at me. He went right to the door and threw me out. I struck the man with my front--with my chest and body. The two of us fell to the ground." It does not appear that Quinn answered this question.

Counsel for the defendants asked to see the statement which had been used in the plaintiff's examination of Quinn, but did not use it in his examination; whereupon the plaintiff

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offered it as an exhibit and it was admitted over the defendants' objections. The record does not disclose that any exception was saved either to the admission of the question to Quinn or to the subsequent admission of the statement. Objection is not exception and presents no question of evidence. United States Fid. & Guar. Co. v. Sheehan, 308 Mass. 321 , 325, and cases cited.

The following interrogatories by the defendants to the plaintiff and his answers thereto were admitted and read by the plaintiff, subject to the exceptions of the defendants. Question 13, "What was the condition of your intestate as to sobriety at the time of the alleged accident?" Answer, "He was sober." Question 4, "State the name and address of the agent, servant or employee of the defendant that you allege caused Quinn to be thrown, pushed, or hurled through the defendant's door." Answer, "Carl S. Garland, 95 Magazine Street, Cambridge." No part of the plaintiff's answers had been introduced by the defendants and these interrogatories and answers were improperly admitted (see G. L. c. 231, Section 89; DiAngelo v. United Mkts. Inc. 319 Mass. 143 , 146) but their admission did not prejudice the defendants. There appears to have been no evidence that the deceased was not sober and certainly evidence that someone other than an employee of the cafe ejected Quinn was not harmful.

There was no error in refusing to direct verdicts for the defendants or for either of them. While the evidence that Quinn was ejected by an agent or employee of the defendant corporation consisted only of admissions by Mrs. Beliauskas, it was sufficient to warrant a finding that the bartender threw out Quinn acting under her instructions. It could be found that the ejectment of an intoxicated person from a place where liquor is served is not uncommonly accompanied by the use of force and that its employment by Goodwin was to be expected and within the scope of his employment. It further could be found that its excessive use constituted negligence for which both defendants were liable. See Fanciullo v. B. G. & S. Theatre Corp. 297 Mass.

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44, 47; Curran v. Dorchester Theatre Co. 308 Mass. 469 , 472; Cowan v. Eastern Racing Assn. Inc. 330 Mass. 135 , 145; Restatement, Agency, Section 245.

Exceptions overruled.

FOOTNOTES

[Note 1] The companion case is by the same plaintiff against Al's Cafe, Incorporated, of Cambridge.