Clapp v. Kemp
122 Mass. 481
Mass.
1877
Check Treatment
Lord, J.

Undoubtedly both the request for instruction, and the instruction actually given, are liable to verbal criticism. But in substance and effect we do not see any difference between them. Each properly based the liability of the defendants upon the decision of the question, whether the teamster, by whose negligence the injury was received, was at the time in the performance of the business of Armor, as his servant, or in the performance of the business of the defendants, as their servant. We are not to assume that, by the peculiar phraseology, the presiding judge intended to leave the question of right to direct or control the manner of said delivery as a question of law to the jury; but simply that, if the jury found such a state of facts as in law gave to the defendants the direction and control of the manner of the delivery of the coal, he would be the servant of the defendants; and that proper instructions were given to the jury as to what state of facts would thus place the delivery under their control. He had already instructed them that mere occupancy of the store was not of itself sufficient to make the teamster their servant, and that, if in fact the teamster, as the servant of Armor, had exclusive possession or control of the premises so far as was necessary to enable him to perform the • service in which he was engaged, the defendants would not be *484liable. It would be a too strict and rigid construction to give any other meaning to the language of the presiding judge than that which we have adopted; and, with that construction of the language, the instruction given was quite as favorable to the defendants as that asked for by them, and quite as favorable as the law would warrant. Exceptions overruled. ~