317 Mass. 721 | Mass. | 1945
The plaintiff was injured on October 31, 1939, when an automobile driven by the defendant collided with an automobile in which the plaintiff was riding.
The plaintiff testified, in substance, that he was the president and a salesman of Ackerman & Patterson, Inc., a corporation engaged in the sale of leather products; that at the time of the accident he was on his way to see a prospective customer in an effort to sell products of the corporation; that the automobile in which he was riding was owned by the corporation and was operated by one Madden, an employee of the corporation, whose duties were “to drive the salesmen where they wished to go on business”; that he had told his driver where to go; and that his driver was “under . . . [his] control” and went wherever he told him to go.
The judge ruled as matter of law that Madden was “the agent or employee” of the plaintiff.and therefore instructed the jury that the plaintiff had the burden of proving that Madden was in the exercise of due care. Bullard v. Boston Elevated Railway, 226 Mass. 262, 266-268. Mendolia v. White, 313 Mass. 318, 321. Prout v. Mystic Motor Trans. Co. Inc., ante, 349, 350.
The ruling that as matter of law Madden was the agent or employee of the plaintiff was wrong. To be sure, the plaintiff was bound by his own testimony in the absence of other evidence more favorable to him. But he testified that Madden was employed by the corporation to drive its salesmen about. From this the jury could find that Madden was not the servant of the plaintiff personally. The ruling of the judge seems to have been based upon the plaintiff’s testimony that the driver was under his control. The right to control the particular details of the work is often decisive as to the existence of a master and servant relationship, especially where the issue is whether the employee is a
But even if the jury found that the plaintiff had the right to do more than direct the driver where to go, and that he had the right to direct the particular details relating to the method of driving, they were still not bound to find that Madden was the agent or servant of the plaintiff. One fundamental element in every master and servant relationship or in any agency is that the alleged agent or servant does something for or in behalf of the alleged principal or master. The American Law Institute defines a servant as ‘ ‘ a person employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master.” Restatement: Agency, § 2. See also § 220, and definition of agency in § 1 (1). The jury were not obliged to find that Madden performed any service in the plaintiff’s affairs. They could find that the only affairs in which both Madden and the plaintiff were interested were the affairs of the corporation by which both were employed; that Madden and the plaintiff, with respect to driving the
If the ruling of the judge were to be sustained it would seem to follow that every member of an ordinary gang of laborers would, as matter of law, be the servant of his foreman instead of the common employer. Or would he be the servant of both although the employer and the foreman were not engaged in a joint enterprise? Either proposition is unsound and inconsistent with established, principles of the law of agency. See Skerry v. Rich, 228 Mass. 462; Ducey v. Brunell, 250 Mass. 114, 117; Cargill v. Bower, 10 Ch. D. 502, at page 514. Compare Slowik v. Union Street Railway, 282 Mass. 249; Stegman v. Sturtevant & Haley Beef & Supply Co. 243 Mass. 269.
The judge’s ruling was not rendered harmless by the statement by the members of the jury in answer to a question of the judge that they had found the plaintiff “con-tributorily negligent.” ' Even if this referred to personal negligence of the plaintiff, although he was not driving the automobile, the, answer was of no effect in. the case. The jury had returned a general verdict for the defendant which had been accepted by the judge and duly recorded by the-clerk. On the next day, without the knowledge of the. plaintiff, the judge “assembled the jury,” propounded to them a question as to contributory negligence of the plain
Exceptions sustained.
See, for example, Spoor v. Spooner, 12 Met. 281; Lawler v. Earle, 5 Allen, 22; Graves v. Washington Marine Ins. Co. 12 Allen, 391, 396; Mair v. Bassett, 117 Mass. 356, 358-359; Hadley v. Heywood, 121 Mass. 236; Spurr v. Shelburne, 131 Mass. 429; Hart v. Brierley, 189 Mass. 598; Ellis v. Block, 187 Mass. 408, 414; Burke v. Hodge, 211 Mass. 156, 162; Moskow v. Burke, 266 Mass. 286, 290; Purcell v. Rose, 261 Mass. 431, 432; Dziegiel v. Westford, 274 Mass. 291, 296; Wallace v. Ludwig, 292 Mass. 251, 259; Burgess v. Giovannucci, 314 Mass. 252, 256.