Street he ran over and killed two men. It is for the death of these two men that these actions are brought. The details of the accident need not be stated because it is admitted that there was evidence that the deceased and both of them were in the exercise of due care and that the accident was caused by Malloy's negligence. Two questions only are raised by the exceptions, namely: (1) whether there was evidence that at the time that he ran over the men Malloy was "engaged in his [the defendant's] business" and (2) whether the judge was wrong in the instructions under which he left that question of fact to the jury.

The defendant's testimony warranted the jury in finding that when Smith failed to keep his appointment with Malloy at the Northampton Street station at nine o'clock in the evening, he (Malloy) abandoned his duties as the defendant's chauffeur and never undertook to resume them.

1. The first exception argued by the defendant is that taken by him to the refusal of the presiding judge to direct a verdict for the defendant. This exception is based on the ground that even if the jury took the view of the facts most favorable to the plaintiffs, they were not warranted in finding that at the time Malloy ran over the two men on Boylston Street he was "engaged in his [the defendant's] business."

The argument in support of this proposition is that the primary object upon which Malloy was bent at the time of the accident was to take Perkins and the McCarthy woman to their homes in Cambridge and Somerville and that, until he had done that, he as matter of law had not resumed his duties as a servant of the defendant. If the jury had found that Malloy did not intend to resume his duties as the defendant's chauffeur until he had taken Perkins and the McCarthy woman home the defendant's contention would have been correct. But there was explicit evidence that Malloy went to the Hayward to meet Smith and the jury were warranted in finding that when he left the Hayward he left to go to Swampscott, intending incidentally to leave the McCarthy woman and Perkins where they wished to be left, at two different places on the direct route to Swampscott. Malloy's intention in this respect is decisive. Ross v. John Hancock Mutual Life Ins. Co. 222 Mass. 560. If it was Malloy's intention on leaving the Hotel Hayward to go to Swampscott pursuant to instructions

which had been given him by the defendant, the fact that he intended incidentally to gratify a private desire of his own by leaving the McCarthy woman and Perkins at two different places on the route is not material. McKeever v. Ratcliffe, 218 Mass. 17. Fitzgerald v. Boston & Northern Street Railway, 214 Mass. 435. It was a question of fact for the jury whether it was the intention of Malloy on leaving the Hotel Hayward to go to Swampscott pursuant to the instructions which he had received from the defendant. There being evidence on which the jury could have found that that was Malloy's intention, the judge could not have directed the jury to render a verdict in favor of the defendant.

2. The next exception argued by the defendant is the exception taken to the refusal to give the seventh and eleventh requests for rulings. What has been said disposes of these exceptions. In support of this exception the defendant has argued that after Malloy abandoned his duties as a chauffeur for the defendant early in the evening he could not resume his duties as the defendant's employee without an implied assent on the part of the employer to the resumption of those duties. And since Malloy had become intoxicated between the time when he abandoned his duties and the time when he undertook to resume them (if the jury found as they must have found that he undertook to and did resume them) he did not in legal contemplation resume his duties and become "engaged in his [the defendant's] business." We cannot accede to this contention.

3. The last exception is the exception taken to a part of the charge. The defendant complains that in his charge the presiding judge instructed the jury that, if Malloy had resumed the physical route which led to Swampscott, he resumed his duties as chauffeur for the defendant. And he urges that in case that be not true if each and every part of this part of the charge is taken into consideration yet, taking what the judge said as a whole, it might reasonably have been understood by the jury to mean that.

In support of this contention he has taken sentences which standing alone and without regard to the rest of the portion of the charge excepted to might be open to that objection. But taking the portion of the charge excepted to as a whole it is not open to it. Three times during the portion of the charge excepted to (and

the portion is not a long one) the judge told the jury that they must find that at the time of the accident Malloy was going to Swampscott pursuant to instructions which he had received from the defendant. In one place he said: "If at the time of the accident Malloy was engaged in going to the destination under the instruction and orders of his employer, which had not been revoked or altered or changed." Again immediately after that the judge said: "if at that time he was engaged in going to Swampscott under instructions to do that, it would make no difference whether he had one woman or two, or one woman and two men in the automobile at the time." And again: "if at the time of the accident his purpose and intention was to carry out the instructions of the employer," etc.

There is nothing in the cases relied upon by the defendant other than the three mentioned above which require special notice. The principles of law on which the decision rests are settled in this Commonwealth. It is not necessary to notice cases from other jurisdictions relied upon by the defendant.

Exceptions overruled.

CLEMENT S. DOWNING vs. ADELPHIA DOWNING & trustees.

Suffolk. January 8, 1917. — May 24, 1917.

Present: RUGG, C. J., LORING, BRALEY, & CARROLL, JJ.

Trustee Process, Interrogatories. Practice, Civil, Interrogatories.

The practice as to interrogatories to those summoned as trustees in trustee process is governed by R. L. c. 189, §§ 9-18, and not by St. 1913, c. 815, relating to the interrogating of an adverse party in an action at law or a suit in equity.

In an action begun by trustee process in which a savings bank is alleged to be a trustee, the plaintiff is entitled to have the trustee answer interrogatories propounded to determine whether the defendant four years and eight months before the date of the service of the writ had money on deposit with the alleged trustee either in his own name or in the name of some one else, and, if so, when it was withdrawn.

If a trustee summoned by trustee process, upon being ordered to answer certain interrogatories propounded to him by the plaintiff, answers one of them but leaves unanswered some of them which are germane to the issues between him and the plaintiff, it is proper to allow a motion that he be defaulted and adjudged a trustee for failure to answer the interrogatories.

CONTRACT, begun by trustee process, wherein the Boston Five Cents Savings Bank and Edith E. Wood were alleged to be trustees. Writ dated April 25, 1914.

The plaintiff propounded eleven interrogatories to the trustee Boston Five Cents Savings Bank. The treasurer answered the first two interrogatories stating his name and position with the bank. The other questions he refused to answer "unless so ordered by the court, believing the questions to be immaterial and improper."

The third and fourth questions asked whether the defendant was a depositor at the bank during August, 1910, and if so, when the amount then on deposit to her credit was withdrawn. The fifth and sixth questions asked whether the defendant in August, 1910, had an account with the bank in some person's name other than her own, and, if so, when it was withdrawn. The seventh, eighth, ninth and tenth interrogatories made similar inquiries as to amounts in the name of the defendant's husband and in the name of Edith E. Wood, the other alleged trustee.

The eleventh interrogatory asked whether or not Edith E. Wood was a depositor with the bank as trustee of the defendant at the time of service of the writ upon the bank.

On motion of the plaintiff, Wait, J., ordered the interrogatories answered. The corporation' then answered the eleventh interrogatory "Yes," further stating that, at the time of the service of the writ there was a deposit with the bank of $21.38 in the name of Edith E. Wood, "trustee for Delphy Downing."

A motion to default this trustee for failure to answer interrogatories 3-11 inclusive was heard and was allowed by Wait, J., who caused the entry to be made "Motion granted. Let trustee be defaulted and adjudged a trustee." On the same day the judge also allowed a motion to charge the same trustee in the sum of $21.38.

The trustee Boston Five Cents Savings Bank appealed.

W. R. Evans, Jr., for the Boston Five Cents Savings Bank, submitted a brief.

H. Lawrin, for the plaintiff.

RUGG, C. J. Eleven interrogatories were propounded to the trustee. It answered two and refused to answer the other nine. On motion and after hearing an order was entered by the court

directing that the remaining interrogatories be answered on or before a certain date. The trustee then answered one further interrogatory and refused to answer the others. It was thereafter defaulted and adjudged a trustee for its failure to answer these interrogatories.

The practice as to interrogatories to those summoned as trustees in actions at law is governed by R. L. c. 189, §§ 9 to 18, and not by St. 1913, c. 815, enacted in substitution for R. L. c. 173, §§ 57 to 67, and c. 159, §§ 15, 16. A trustee is not ordinarily an adversary party and cannot be subjected to cross-examination. But he may be examined somewhat in detail in order to elicit facts tending to charge him.

Some at least of the interrogatories propounded in the case at bar were pertinent as calculated to show that under the cloak of the name of another the principal defendant had money on deposit with the trustee. It was germane to this line of inquiry to extend the questions to a period of time somewhat before the service of the writ. It is not necessary to determine whether all the interrogatories were competent which the trustee refused to answer. Those relating to the previous state of the account of the principal defendant certainly were, and the trustee's absolute refusal to answer covered these. While it is true that a trustee, having no interest in the action between the principal parties, is entitled to the protection of the court to the end that he is put to no excessive expense and trouble, Cavanaugh v. Merrimac Hat Co. 213 Mass. 384, yet he may be interrogated to a reasonable extent in order to ascertain the true state of the account between him and the principal defendant. The case is covered by MacAusland v. Taylor, 220 Mass. 265, and cases there collected.

Order charging trustee affirmed.