Murray v. Postal Telegraph-Cable Co.

210 Mass. 188 | Mass. | 1911

Braley, J.

The instructions as to liability under which a general verdict was returned for the company were largely, if not wholly, predicated upon Haskell v. Boston District Messenger Co. 190 Mass. 189, and portions of the opinion, defining the implied contract or duty of the defendant in that case and the care required in the selection of messengers, were quoted as applicable in the case at bar. But the ground upon which the defendant was exonerated in that case rested upon the contract with the plaintiff; and it was accordingly held that as the messenger received his instructions directly from the plaintiff he became the plaintiff’s servant during the time of service, even if he continued in the general employment of the company. It was further decided, that under the bailment the defendant did not assume the liability of a common carrier, but contracted only that the messenger furnished should be a suitable person for the performance of the duty entrusted to him. Haskell v. Boston District Messenger Co. 190 Mass. 189, 192, 194. The duties and liability of the defendant in the present case however must depend upon the contract between the parties-and the first inquiry is, whether one Tierney, who was sent to the plaintiff in response to a call from her for a messenger, became her servant or agent, and for whose subsequent conduct the defendant should not be held responsible. It was not in dispute, that although formerly a messenger, he had become a clerk having charge of the defendant’s messengers, and that the plaintiff, who on former occasions had dealt with him as a messenger before he became clerk, and in whom because of his efficiency and honesty she reposed great confidence, was ignorant of the change in employment. The jury upon the evidence would have been justified in finding, that when the plaintiff delivered to him the bundle containing the gowns, she understood and believed that he was still in the defendant’s general employment as messenger, and that having been sent at her request, he was subject to her orders for the time being. It is manifest that Tierney remained the servant of the defendant. The duty which he owed to the company of supervision of its messenger boys whose services might be required at any moment by customers, precluded his acting for the plaintiff as an errand boy, whom she could command, and whose acts she could control until the purpose for which she wished the aid of a messenger had been accomplished. See Bowie v. Coffin Valve Co. 200 Mass. 571, 578; Shepard v. Jacobs, 204 Mass. 110.

It is contended by the defendant, that it was accustomed to substitute for the messenger who answered a patron’s call, and to whom the carriage and delivery of parcels had been committed by the patron, another messenger to perform the service, if the convenient management of its business required the change, and the jury were instructed that the substitution could be properly made. But it is only where the principal assents, or where from the nature of the agency a sub-agent necessarily must be employed in transmission, that the assent of the principal is implied. Dorchester & Milton Bank v. New England Bank, 1 Cush. 177, 186. Lowell Wire Fence Co. v. Sargent, 8 Allen, 189, 192.

The defendant sent Tierney not as its. messenger but as its clerk, and the jury upon the uncontradicted evidence could have found, that the plaintiff believing him to be a messenger, not only gave him specific directions for his guidance, but entrusted to him alone the duty of delivery. No express contract having existed for want of a mutual understanding between the parties, and the defendant as a bailee for compensation having voluntarily accepted the gowns to be forwarded, and assumed the control and care of them, their subsequent delivery by Tierney to the defendant’s employee and messenger boy, one Sehwatz, whom he selected, did not constitute Sehwatz the plaintiff’s servant or agent.

The defendant was fully informed of the nature and particulars of the service required. If through the negligence of Tierney in misdirecting the bundle when he returned to the defendant’s office, or through the negligence of Sehwatz, as'the jury would have been warranted in finding upon the evidence, the gowns were never delivered to the plaintiff’s customer, the defendant would be liable for the loss. Newhall v. Paige, 10 Gray, 366. Maynard v. Buck, 100 Mass. 40, 47. Wood v. Remick, 143 Mass. 453. American District Telegraph Co. v. Walker, 72 Md. 454. Sleat v. Fagg, 5 B. & Ald. 342. The plaintiff’s first, second and fourth requests should have been given, and the instructions, that Sehwatz was the plaintiff’s servant for whose conduct the defendant would not be responsible, unless the jury found that the defendant did not exercise ordinary care in his selection and employment, were erroneous.

The plaintiff’s third request, that-the defendant might be found liable for conversion if the jury were satisfied that in response to the plaintiff’s order the defendant agreed to send a messenger to her place of business, and instead sent its servant, who was not authorized to act as messenger, but who without disclosing his want of authority wrongly received the bundle, which was never delivered as she directed or returned to the plaintiff, was rightly denied. The carrying away of the parcel by Tierney under the belief of the plaintiff that he was acting as messenger may have been unauthorized, but, the parcel not having been originally taken with intent to assert any right of the defendant or to deny the plaintiff’s title, there was no- proof of conversion. Farnsworth v. Lowery, 134 Mass. 512. Berry v. Friedman, 192 Mass. 131, 136.

But in connection with the fourth count and this request, it should be noticed, that if contrary to the plaintiff’s directions the bundle or parcel was delivered to the wrong person, the delivery would be a conversion, as neither Tierney nor Schwatz was the plaintiff’s servant. The rule is well stated by Mr. Justice Foster in Hall v. Boston & Worcester Railroad, 14 Allen, 439, 443: “ A misdelivery of property by any bailee to a person unauthorized by the true owner is of itself a conversion, rendering the bailee liable in trover, without regard to the question of due care or degree of negligence. This is a well established legal principle, applicable to every description of bailment. . . . And a delivery to an unauthorized person is as much a conversion as would be a sale of the property, or an appropriation of it to the bailee’s own use. In such cases neither a sincere and apparently well founded belief that the tortious act was right, nor the exercise of any degree of care, constitutes a defense even to a gratuitous bailee.”

The plaintiff also excepted to the instruction, that “ if the jury find that the plaintiff delivered to the defendant’s messenger boy a package containing articles of great value without notifying the defendant or its messenger boy that said package did contain articles of great value, the plaintiff was not in the exercise of due care and cannot recover,” and “ that if the package was delivered and no notice of its contents was given to the company, or to anybody representing it, then this plaintiff is not entitled to recover.” No evidence appears that the company had established any rules or regulations exempting it from liability, if packages of ordinary merchandise which it engaged to deliver were lost in transportation, nor was there proof of a general custom, that in common with other companies engaged in a similar business only packages of small value were received. In the absence of such evidence these instructions, and the further instruction, that it was a matter of common knowledge that the defendant’s business included only the delivery of packages not of great value, misled the jury and were incorrect. Barrie v. Quinby, 206 Mass. 259, 264, 265. The defendant’s agent on the evidence could have been found to have known that the plaintiff • was a dressmaker who frequently had employed the company’s messengers for the delivery of goods to her customers and it does not appear that the form of the bundle was such as to mislead him as to its character or value, and unless inquiry was made, she was under no obligation at common law to state the value and nature of the contents of the parcel. Dwight v. Brewster, 1 Pick. 50, 54. Phillips v. Earle, 8 Pick. 182. Gage v. Tirrell, 9 Allen, 299. Dunlap v. International Steamboat Co. 98 Mass. 371, 377, 378. And the jury should have been so instructed. The plaintiff is justified in the assumption, that this error of itself might have caused the jury to return a verdict for the defendant, even if under the instructions as to liability they were satisfied that the loss resulted from the incompetency of Schwatz, with notice of which they also found that the defendant was chargeable.

The exceptions to the admission of evidence really involve the measure of the plaintiff’s damages. The gowns, having been made to order for a particular customer, may have had no market value, and evidence of the cost of the labor and material was competent as bearing upon the question.

We have considered the exceptions so far as argued by the plaintiff, and for the reasons stated there must be a new trial.

Exceptions sustained.