Driscoll v. Towle

• Decision Date: 22 May 1902
• Citation: 181 Mass. 416,63 N.E. 922
• Parties: DRISCOLL v. TOWLE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

181 Mass. 416

63 N.E. 922

DRISCOLL v. TOWLE.

Supreme Judicial Court of Massachusetts, Suffolk.

May 22, 1902

COUNSEL

I. R. Clark, for plaintiff.

Dickson & Knowles and Wm. B. Sprout, for defendant.

OPINION

HOLMES C.J.

This is an action for personal injuries caused by the plaintiff's being struck in the street by a horse or wagon driven by one Keenan. At the trial the judge directed a verdict for the defendant, and the plaintiff excepted. The only question is whether there was any evidence that Keenan was the defendant's servant.

The defendant 'was engaged in general teaming business in Boston.' He owned the horse and wagon, and employed Keenan and paid him his wages. Keenan's only contract of employment was with him. For some time, however, Keenan had been carrying property for the Boston Electric Light Company under some arrangement between the latter and the defendant. The general course of business, or at least that adopted on the day of the accident, was this: Early in the morning Keenan took the horse and wagon from the defendant's stables and reported to the Electric Light Company. An employé of that company would give him his orders as to what to do and where to go, and he spent the day in carrying those orders out. Sometimes he would help pull up arms on the poles, or pull up machinery, and the like. In driving, if he was directed to drive fast, he would drive fast, and if told that he had time enough, he would take his time, but he chose his own route and had exclusive management of his horse. At night he returned to the defendant's stables. He harnessed and unharnessed the horse, and fed it at noon. At the moment of the accident he was going to get some arms in pursuance of an order from the foreman of the Electric Light Company.

We are of opinion that these facts are at least evidence that Keenan was the defendant's servant.

It is true, of course, that a person admitted to be in the general employment of one may be lent to another, with his own consent (Railroad Co. v. Hardy, 59 N. J. Law, 35, 34 A. 986), in such a way as to become the servant of that other for the occasion or for the time. Many cases have been decided on this ground. They generally depend upon the nature of the contract or arrangement, express or implied, between the general master and the third person. Linnehan v. Rollins, 137 Mass. 123, 50 Am. Rep. 287: Hasty v. Sears, 157 Mass. 123, 31 N.E. 759, 34 Am. St. Rep. 267; Coughlan v. City of Cambridge, 166 Mass. 268, 277, 278, 44 N.E. 218; Samuelian v. Machine Co., 168 Mass. 12, 46 N.E. 98; Donovan v. Construction Syndicate [1893] 1 Q. B. 629; Rourke v. Colliery Co., 2 C. P. Div. 205; Higgins v. Telegraph Co., 156 N.Y. 75, 50 N.E. 500, 66 Am. St. Rep. 537. But the mere fact that a servant is sent to do work pointed out to him by a person who has made a bargain with his master does not make him that person's servant. More than that is necessary to take him out of the relation established by the only contract which he has made and to make him a voluntary subject of a new sovereign,--as the master sometimes was called in the old books. Dutton v. Bank (Mass. April, 1902) 62 N.E. 405.

In this case the contract between the defendant and the Electric Light Company was not stated in terms, but it fairly could have been found to have been an ordinary contract by the defendant to do his regular business by his servants in the common way. In all probability it was nothing more. Of course in such cases the party who employs the contractor indicates the work to be done and in that sense controls the servant, as he would control the contractor if he were present. But the person who receives such orders is not subject to the general orders of the party who gives them. He does his own business in his own way, and the orders which he receives simply point out to him the work which he or his master has undertaken to do. There is not that degree of intimacy and generality in the subjection of one to the other which is necessary in order to identify the two and to make the employer liable under the fiction that the act of the employed is his act.

Of course the chances are that some orders will be given which are not strictly within the contract of the master. That is to be expected from the relative positions of the servant and the other party. If the latter has something that he wants done and sees a working man at hand, he is likely to ask him to do it, and if it is within the penumbra of his business the servant is likely to obey. While he thus goes outside his master's undertaking...