Haskell v. Boston District Messenger Co.

190 Mass. 189 | Mass. | 1906

Knowlton, C. J.

The defendant is a corporation, organized under the laws of New Hampshire for the purpose of “ carrying on a general messenger business, leasing, operating, erecting and maintaining wires and fixtures for call boxes, telegraphs and other things relating to and useful in the receiving and transmitting and delivery of messages.” For many years it has had a general office and branch offices in the city of Boston, and has been engaged in the business of furnishing messengers for hire. The ordinary method of doing the business has been for the company to send a messenger in response to a call, and to send with him a printed slip, with blank spaces for filling in the “ Time started,” “Name,” “Address,” “Messenger occupied” (Time), “ Expenses ” (Paid), “ Total,” “ Messenger detained ” (Minutes), “By” (Name of person employing messenger). There were other blanks to be filled, to show where the messenger was sent, by whom the message was received, where the answer was delivered, and by whom it was received. An advertising pamphlet, issued by the defendant, gave the rates of charges for a messenger between specified points in all parts of Boston, and also rates by tbe hour. At the bottom of one of its pages was a printed statement, “We employ bright, intelligent boys who are thoroughly experienced in messenger work.” The rates stated are all without reference to the nature or importance of the work in which the particular messenger may be employed. The pamphlet contained numerous other advertising statements, all of which implied that the business done by the company was only in furnishing messengers for the service of others, except that at the bottom of one page there was this statement: “ We deliver addressed circular work, bills, monthly statements, catalogues, calendars, etc. Get our prices.” It also appeared that for several years, shortly before Christmas, the defendant had distributed a card, saying that it made a specialty of delivering Christmas presents. In carrying on its business the defendant employed boys fifteen or sixteen years of age.

The plaintiff signalled to the defendant for a messenger by means of a call box, and delivered to the messenger sent in response to his call, a receipted bill for rent, amounting to $58.33, and sent him to a tenant to collect it. The messenger collected the money and failed to return it. The question is whether there was any evidence at the trial which would warrant the jury in finding for the plaintiff for the amount of this money which he seeks to recover.

The plaintiff contends that the defendant acted as a common carrier in receiving the bill and undertaking to bring back the money. We find nothing in the evidence tending to show this. It undertook to furnish messengers to be used by its employers in any way in which messengers could properly be employed. If special and peculiar service was wanted special arrangements were to be made for it. In the ordinary conduct of its business the defendant did not assume any control of the work in which the messengers were to be employed, and usually had no knowledge of it until after it was completed. Even then it had no knowledge of the nature of the message delivered, or the particulars of the service. The employer was left to direct the messenger, to determine what he should do and how he should do it, subject only to an implied understanding that he should not be called upon to render service of a different kind from

that which can properly be performed by messengers. In this service the messenger became, for the time, a servant of the employer, while he was still in the general service of the defendant. Linnehan v. Rollins, 137 Mass. 123. Hasty v. Sears, 157 Mass. 123. Samuelian v. American Tool & Machine Co. 168 Mass. 12. Delory v. Blodgett, 185 Mass. 126.

It was shown that messengers had often been entrusted with money and property by those who called them. So far as appears, this was under the general arrangement already stated, which gave the defendant no knowledge nor any responsibility in regard to the way in which the messenger was used. The evidence tended to show that some of the agents of the company, and perhaps the general manager of the company, knew that sometimes messengers were so used. But this creates no liability for the money or property, so long as the messengers were furnished only to be used and controlled by the employer as he might choose.

What is the implied contract or duty of the defendant, growing out of this kind of business ? Does the defendant become a common carrier and insurer of everything entrusted to the messengers? It seems quite plain that it does not. It impliedly contracts that the messengers whom it furnishes are suitable and proper persons for the performance of the ordinary duties of messengers, so far as the exercise of ordinary care in the selection and employment of them will enable it to procure such persons. Its duty is not very unlike that of a stable keeper who furnishes a horse and carriage for the use of a hirer. Because, for the proper performance of their duties, these messengers should be worthy of confidence, ordinary care in the selection of them requires that investigation should be made and precautions be taken to insure the exclusion of all unfit persons from this employment, and to secure persons of such mental and moral qualifications as render them trustworthy. For a failure to take due precautions in these particulars the defendant may be held liable, either for negligence or upon an implied contract, to any person who suffers loss from the misconduct of a messenger whom it has furnished. In the present case there was no evidence of negligence of the defendant in this particular.

If, in the delivery of Christmas presents, or of bills, statements, catalogues, etc. the defendant becomes a common carrier, it is liable as such. But that can be only by an arrangement different from that made with this plaintiff.

The exceptions in regard to the exclusion of evidence must be overruled. None of the testimony excluded had any tendency to show that the defendant became liable as a common carrier for money or property entrusted to messengers under ordinary arrangements like that made with the plaintiff. Mere knowledge that employers sometimes entrusted money to them, without any contract other than the usual one, under which the messenger is furnished to be used by the employer in the ordinary way, would not make the defendant liable for loss of money, through his dishonesty, unless there was a failure to use proper care in the selection of the messengers.

Exceptions overruled.