Georgopoulos v. Clarendon Const. & Trucking Co.

• Decision Date: 10 December 1971
• Citation: 360 Mass. 865,277 N.E.2d 309
• Parties: Gail GEORGOPOULOS et al. v. CLARENDON CONSTRUCTION AND TRUCKING COMPANY, Inc., et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 309

277 N.E.2d 309

360 Mass. 865

Gail GEORGOPOULOS et al. v. CLARENDON CONSTRUCTION AND TRUCKING COMPANY, Inc., et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 7, 1971.

Decided Dec. 10, 1971.

William H. Shaughnessy, Boston, for defendant Rowe Contracting co.

Philander S. Ratzkoff, Boston (James F. Meehan, Boston, and S. George Bromberg, Malden, with him), for plaintiffs.

Before TAURO, C.J., and CUTTER, REARDON, QUIRICO and HENNESSEY, JJ.

RESCRIPT.

This is an action of tort in which verdicts were returned by a jury against Clarendon Construction and Trucking Company, Inc. (Clarendon) and Rowe Contracting Company (Rowe). The case is before this court on Rowe's exception to the denial of its motion for directed verdicts. The sole issue for our determination is whether there was sufficient evidence to warrant a jury in finding that James Walsh, the driver of a truck owned by Clarendon, was a servant of Rowe at the time of the accident, thereby rendering Rowe liable for his negligence. In the light of our prior decisions dealing with borrowed servants, we are of opinion that the motion for directed verdicts in this case was rightly denied. Coughlan v. Cambridge, 166 Mass. 268, 277, 44 N.E. 218; Cain v. Hugh Nawn Contr. Co., 202 Mass. 237, 88 N.E. 842; Harrington v. H. F. Davis Tractor Co., Inc., 342 Mass. 675, 679, 175 N.E.2d 241; Galloway's Case, 354 Mass. 427, 430, 237 N.E.2d 663. There was sufficient evidence on the issue of Rowe's control over the driver to present a question of fact as to whether he had become a servant of Rowe. Where more than one conclusion is permissible the question is for the jury. Marsh v. Beraldi, 260 Mass. 225, 231, 157 N.E. 347. Without stating all of the evidence in detail, we note that the jury could have permissibly found that Clarendon's drivers generally, and Walsh in particular, were controlled by Rowe in the manner of loading the trucks, that Rowe controlled the method of delivery and directed and controlled the destination and routes which the trucks followed in making the deliveries. The jury could have also found that Rowe had the right to instruct drivers to obey speed limits, to avoid streets closed to truck traffic and to adhere to customer delivery schedules. If the drivers did not comply with Rowe's instructions, they would no longer deliver for Rowe. Also, Rowe and Clarendon could have been found to have had a long standing relationship whereby Clarendon operated as a...