Tornroos v. R. H. White Co.
220 Mass. 336
Mass.
1915
Check Treatment
Rugg, C. J.

The material facts out of which these actions arise are these: The Autocar Company sold to the R. H. White Company two motor trucks, and agreed as a part of the contract to furnish with each for seven days without cost a chauffeur, who was a thorough mechanic and who would instruct the men of the R. H. White Company, and to “garage” the trucks, including the making of all ordinary repairs, for twelve months. The contract was in writing. During the seven day instruction period chauffeurs took the truсks from the garage of the Autocar Company and proceeded to the stable of the R. H. White Company where one of its men boarded each of the trucks, which thereafter were used in the delivery of goods of the R. H. White Company until the end of the day, when the men of the R. H. White Company left and the trucks were then driven from its stable to the garage of the Autocar Company by the chauffeurs. During the day the servants of the R. H. White Company gave directions as to the streets and houses to which the trucks should be driven in the delivery of goods, but the manner and speed of driving was wholly within the control of the chauffeurs, who were skilled mechanics in the general employ of the Autocar Company. On one of the journeys from the gаrage of the Autocar Company to the stable of the R. H. White Company during the seven day period, and when the chauffeurs employed and paid by the Autocar Company were alone on the trucks, the plaintiff Karl was injured, as has beеn settled by the Verdict of the jury, while he was in the exercise of due care, through the negligence of the driver of one of the trucks. The jury found specifically that the negligent chauffeur at the moment of the accident was a servant both оf the R. H. White Company and of the Autocar Company. It is contended by each of the defendants that as to it this finding was unwarranted and that a verdict should have been directed in its favor.

*339The general principles of law which govern cases of this kind have been considered frequently and are well settled. In their application distinctions of nicety may arise when one in the general employment of another is by his consent lent or hired by his master to work for a third in some special sеrvice. The test to determine the legal responsibility of that third person for his conduct is, whether in the particular service performed by him he continues subject to the control and direction of his master as to the means to be employed, and the result to be achieved, or becomes subject to that of the third person. This must be considered, as was said by Chief Justice Knowlton in Shepard v. Jacobs, 204 Mass. 110, at page 112, not merely with reference to “the general business which the act is intended to promote, but the particular business which calls for the act, in the smallest subdivision that can be made of the business in reference to control and proprietorship.” The particular business which the negligent chauffeur was engaged in doing at the time оf the accident was that of driving the truck. The driving of the truck during the seven day-period was by the terms of the contract exclusively within the control and direction of the Autocar Company. The truck was being driven to the place where the instructiоn of the servant of the R. H. White Company was to begin. But that place had not been reached. The man to be instructed had not yet appeared on the scene. The instruction had not begun. No employee of that company wаs on the truck at the time. It was not being used in its business of delivering goods. It was not even being employed for the instruction of its servant. It was wholly in the management and control of the Autocar Company. It was being taken by that company pursuant to its contract to a point where further performance of its contract was to take place. The business of the R. H. White Company had not begun. The only matter about which that company could then have given any authoritative direction was at most as to the place where the instruction should be given and to which the truck should be taken for that purpose. But it could say nothing respecting the route, speed or general or particular method of driving. Its representativе was not .present and was not intended to be present at the time of the accident, because its business then was not being done. It was not in a position and had no power to give any direction as to the *340concrete act of nеglect which caused the injury. The chauffeur. was not selected by the R. H. White Company. It did not hire him nor could.it discharge him, or refuse to accept him provided he was competent; it did not pay ‍​​‌​​‌‌‌​‌​​‌‌‌​​‌‌‌​​‌‌​​‌‌‌‌​​‌‌​‌​‌‌‌​‌​‌‌‌​​‍him directly or indirectly save as .his compensаtion may have have been included in the cost of the truck. The circumstance that the truck belonged to the R. H. White Company is an important but not decisive factor. See. Trombley v. Stevens-Duryea Co. 206 Mass. 516. It is not quite enough:to countervail those mentioned, which, being substantially undisputed, show as matter of law that the injuries to the plaintiffs were not caused by the R. H. White Company.

On this point the. case is close to the line and there are none of our decisions precisely, in point, but Bowie v. Coffin Valve Co. 200 Mass. 571; S. C. 206 Mass. 305, Dutton v. Amesbury National Bank, 181 Mass.. 154, and Fleischner v. Durgin, 207 Mass. 435, are somewhat analogous arid like conclusions there were reached. Kellogg v. Church Charity Foundation, 203 N. Y. 191; S. C. Ann. Cas. 1913 A, 883 and note, 886, and Quarman v. Burnett, 6 M. & W. 499, go.further than is required to relieve the R. H. White Company from liability; In those two cases the defendants owned the- vehicles, which were being used in their business by a driver furnished under contract by a third persоn who alone had ‍​​‌​​‌‌‌​‌​​‌‌‌​​‌‌‌​​‌‌​​‌‌‌‌​​‌‌​‌​‌‌‌​‌​‌‌‌​​‍the authority to. hire, discharge and direct the driver as to the details of his duty of. driving, and they were exonerated from liability. Other cases on all fours with the cases against the R. H. White Company hold that the defendant is not liable. Neff v. Brandeis, 91 Neb. 11. Ouellette v. Superior Motor & Machine Works, 157 Wis. 531. See also Meyers v. Tri-State Automobile Co. 121 Minn. 68; Dalrymple v. Covey Motor Car Co. 66 Ore. 533.

It is plаin from what has been said that the Autocar Company is liable. The injuries were the direct result of a negligent doing of its business by its servant hired by it and at the moment engaged in the performance of his duty as its employee. The actions against that defendant are well within numerous of our cases. They are in legal intendment almost exactly like Roach v. Hinchcliff, 214 Mass. 267. They are in principle indistinguishable from Driscoll v. Towle, 181 Mass. 416, Corliss v. Keown, 207 Mass. 149, Hunt v. New York, New Haven, & Hartford Railroad, *341212 Mass. 102, Brow v. Boston & Albany Railroad, 157 Mass. 399, Hussey v. Franey, 205 Mass. 413, Pigeon’s Case, 216 Mass. 51, 54, and Standard Oil Co. v. Anderson, 212 U. S. 215.

The Autocar Company furnished chauffeurs for the operation of the trucks to the R. H. White Company after the expiration of the seven day period. Bills for these were put in evideñcé: They covered the entire period beginning with the first day with a credit “less 7 days no charge.” They contained this clause, —' “ Cars operated by our employees only at owner’s risk.” The trial judge rightly ruled that this sentenсe, contained in bills rendered after the accident and not referred to in any way in the written contract between the two defendants, were no part of that agreement. In view of that ruling, it is not necessary to decide whether his interprеtation of the sentence was correct or not.

A further question arises as to the right of the plaintiff, Katherine, to maintain an action for expenses incurred by her for the care of and attendance upon her minor son Karl growing оut of his injuries and for the loss of his services suffered.by her during his nonage. The undisputed evidence showed that before the accident, she had been deserted by her husband, the father of the plaintiff Karl, and at the time of the trial he had been absent ‍​​‌​​‌‌‌​‌​​‌‌‌​​‌‌‌​​‌‌​​‌‌‌‌​​‌‌​‌​‌‌‌​‌​‌‌‌​​‍fоur years. His wife did not know where he was living nor even if he were alive. Adjudication had been entered against him on a charge of non-support of his family: thereafter for about six months he paid his wife a weekly allowance and then he disappeared. Since then the mother has supported the son entirely, who had no other means of maintenance. He had performed for his mother whatever service was within the range of his age and ability.

The duty rests upon the father to nurture and support his children in sickness and in health. Filial fidelity demands from children as a reciprocal obligation a degree of service for the father measured by age, ability and reasonable paternal requirement. The father is entitlеd to such service or the fruit of it if the child is employed by others. These respective duties and obligations have been recognized in the common law from an early day and rest upon deeply rooted natural sentiments. In the event of thе death of the father a widowed mother who maintains a home and keeps a family of minor children together and supports *342them in part from their own services or earnings, stands in his stead as head of the family in respect of civil responsibility and right. She is entitled to recover damages for expenses incurred and loss of service suffered by a tortious injury to her minor child. Horgan v. Pacific Mills, 158 Mass. 402. It has been held also that a wife deserted by her husband may put her minor children out to proper service and assign thеir wages for the support of the family. A father may forfeit his right to the custody and services of the child by his misconduct. Dumain v. Gwynne, 10 Allen, 270, 272. Abbott v. Converse, 4 Allen, 530. The right of the father and mother in respect of their ‍​​‌​​‌‌‌​‌​​‌‌‌​​‌‌‌​​‌‌​​‌‌‌‌​​‌‌​‌​‌‌‌​‌​‌‌‌​​‍children, as was said by Mr. Justice Sheldon in Purinton v. Jamrock, 195 Mass. 187, at page 201, “is not an absolute right of property, but is in the nature of a trust reposed in them, and is subject to their correlative duty to care for and protect the child: and the law secures their right only so long as they shall discharge their obligation.” The evidence in the case at bar wаrranted a finding of abandonment by the father of his parental obligations and duties, such as would bar him from all right to collect the son’s earnings or to maintain an action for loss of his services. McCarthy v. Boston & Lowell Railroad, 148 Mass. 550. There appears to be no sound distinction in prinсiple between a mother widowed and one who has been deserted by a faithless husband and father, and who thus has thrust upon her in fact as large or perhaps an even greater burden of expense and responsibility than if she were a widоw. The natural obligations as to nurture and support are as extensive in the one case as in the other. Her necessity is as urgent in one case as in the other. So far as lies in his power, the trust of the father has been abrogated by his act. Sometimes her rights in such cases have been put on the ground of agency from the husband implied from his conduct.

It has been the tendency of our decisions and the positive trend of our statutes to ameliorate the common law disabilities оf married women. Nolin v. Pearson, 191 Mass. 283. Bunnell v. Hixon, 205 Mass. 468. Wing v. Deans, 214 Mass. 546. She now stands before the law almost, if not quite, on the same footing as the husband as fo all property and business rights, domestic ‍​​‌​​‌‌‌​‌​​‌‌‌​​‌‌‌​​‌‌​​‌‌‌‌​​‌‌​‌​‌‌‌​‌​‌‌‌​​‍.privileges and family immunities, though not charged with equal responsibilities. In case of discord or separation, she has the same *343rights as the husband to custody of children. R. L. c. 152, § 28; c. 153, § 37. She is made responsible for pauper support of her children equally with her husband, except that she is exempt from the liability to criminal prosecution in this regard which rests uрon the husband. R. L. c. 81, § 10. St. 1909, c. 180, imposes upon both husband and wife penalties for criminal neglect of their children, while the uniform desertion act, St. 1911, c. 456, § 1, makes either the father or the mother liable to severe punishment for desertion or wilful refusal prоperly to care for and rear their children.

It follows that the right of the wife to maintain an action in a case like the present, even though the husband is living, may rest, also, upon the natural rights and obligations of a mother thrown upon her own resоurces and compelled by the wrongful act of the husband to assume the duties and discharge the obligations of both parents. This conclusion is supported by decisions of other courts. McGarr v. National & Providence Worsted Mills, 24 R. I. 447. Yost v. Grand Trunk Railway, 163 Mich. 564. Savannah, Florida & Western Railway v. Smith, 93 Ga. 742. Magnuson v. O’Dea, 75 Wash. 574. Nugent v. Powell, 4 Wyo. 173, 195.

There is nothing at variance with this conclusion in Gleason v. Roston, 144 Mass. 25, which held the pauper obligation as to support of minor children under such circumstances did not rest on the mother. This was before the enactment of St. 1898, c. 425, § 3, which made a mother responsible for such support. We do not mean to intimate that the legal obligation of the father is annulled.

The result is that the exceptions of the Autocar Company must be overruled. Those of the R. H. White Company must be sustained, and as verdicts ought to have been directed in its favor, and the cases seem to have been tried fully and fairly, judgment must be entered for it in accordance with St. 1909, c. 236.

So ordered.