265 Mass. 236 | Mass. | 1928
This is an action to recover for personal injuries received by the plaintiff when struck by an automobile owned and operated by one Parnell. After the trial was begun and after the opening by the plaintiff, the parties submitted the following statement of certain agreed facts: “It is herewith agreed between the parties to the above entitled action that on November 17, 1925, one Eric Parnell was in the general employment of the defendant and was the owner of a Mercer automobile which was involved in an
The plaintiff then made the following offer of proof: “That the driver of the automobile was at the time of his accident proceeding to Watertown for the purpose of doing some work for the defendant upon the installation of certain electric wiring and fixtures; that a considerable quantity of tools, wires and fixtures were at the time being conveyed in the automobile in which he was proceeding to Watertown for the purpose stated with the knowledge and consent of the de
Thereupon the presiding judge allowed a motion for a directed verdict filed by the defendant, and the plaintiff excepted. It was agreed by the parties that, if the case should have been submitted to the jury, judgment was to be entered for the plaintiff in the sum of $2,000, otherwise judgment was to be entered for the defendant. The case is before this court upon a report by the presiding judge.
The principle respondeat superior is not applicable unless the agreed facts warranted a finding that the relation of master and servant existed at the time the plaintiff was injured, whereby the negligent act of the servant was legally imputable to the master. The test of the relationship is the right to control. It is not necessary that there be any actual control by the alleged master to make one his servant or agent, but merely a right of the master to control. If there is no right of control there is no relationship of master and servant. If the power of control rests with the person employed, he is an independent contractor. In order that the relation of master and servant may exist, the employee must be subject to control by the employer, not only as to the result to be accomplished but also as to the means to be used. Forsyth v. Hooper, 11 Allen, 419,421,422. Shepard v. Jacobs, 204 Mass. 110, 112. Chisholm’s Case, 238 Mass. 412, 419, 420. Railroad Co. v. Hanning, 15 Wall. 649, 656. Singer Manuf. Co. v. Rahn, 132 U. S. 518, 523. We do not understand that these general rules of law are controverted by the plaintiff. The only dispute is their application to the facts in the case at bar.
It is the contention of the plaintiff that as Parnell was an employee of the defendant and had a fixed weekly wage, with regular hours of employment, and was at the time of the accident on duty in accordance with the terms of his employment, he was a servant of the defendant at the time of the accident.
In the present case the sole interest of the defendant was that Parnell should be at places where the defendant had work to be performed, leaving the means of transportation to Parnell’s decision and convenience, but limiting the liability for expense to the defendant to an amount equivalent to the fares of a common carrier. The defendant assumed no obligation to keep the automobile in repair; that duty rested upon Parnell, its owner. . If he chose to use his car instead of travelling'by a common carrier to go to a particular
Upon the agreed facts, it is plain that the defendant cannot be held hable for injuries caused by the use of the automobile. In many respects the present case is similar in its facts to Pyyny v. Loose-Wiles Biscuit Co., supra, recently decided by this court, and in principle is governed by it. Shepard v. Jacobs, supra. Centrello’s Case, 232 Mass. 456. Singer Manuf. Co. v. Rahn, supra.
Judgment on the verdict.