Khoury v. Edison Elec. Illuminating Co.

• Decision Date: 14 December 1928
• Parties: KHOURY v. EDISON ELECTRIC ILLUMINATING CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

265 Mass. 236

164 N.E. 77

KHOURY

v.EDISON ELECTRIC ILLUMINATING CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 14, 1928.

Report from Superior Court, Suffolk County; C. T. Callahan, Judge.

Action by Alfred R. Khoury, a minor, against the Edison Electric Illuminating Company. Directed verdict for defendant, and plaintiff excepts. On report. Judgment on the verdict.

E. R. Dewing, of Boston, for plaintiff.

K. C. Parker, of Boston, for defendant.

CROSBY, J.

This is an action to recover for personal injuries received by the plaintiff when struck by an automobile owned and operated by one Parnell. After the trial was begun and after the opening by the plaintiff, the parties submitted the following statement of certain agreed facts:

‘It is herewith agreed between the parties to the above entitled action that on November 17, 1925, one Eric Parnell was in the general employment of the defendant and was the owner of a Mercer automobile which was involved in an accident on that day, which accident resulted in injuries to the plaintiff in this action. That the accident occurred on Commonwealth Ave., Boston, near the intersection of Dartmouth Street. That Eric Parnell had left the defendant's place of business at 39 Boylston Street, Boston, and at the time was proceeding to Watertown, Massachusetts, the purpose of his trip being in connection with the defendant's installation of a certain flood light in that place. That he had in the car a flood light belonging to the defendant which he was carrying to that place. That he had prior to November 17, 1925, entered into an agreement with the defendant that when traveling for the defendant he could, at his election, use his own car for transportation or the railroads and street railways, and in either case the defendant would pay to him an amount equivalent to the railroad or trolley fare. That the defendant had no other obligation to the said Parnell in respect to the said Parnell's automobile or its use than to pay to the said Parnell an amount equivalent to that which would have been Parnell's expenses had he travelled by common carrier rather than by the use of his own automobile. That the use of his automobile upon November 17, 1925, and upon the particular trip which he was taking at the time of the accident was known to the defendant, and the use of his automobile on this trip was in accordance with the above stated agreement between him and the defendant.’

It was further orally agreed by the parties that the plaintiff would introduce evidence which would warrant the jury in finding that at the time of the accident he was in the exercise of due care, and that the driver of the car was negligent or guilty of willful and wanton misconduct in the operation of the car.

The plaintiff then made the following offer of proof:

‘That the driver of the automobile was at the time of his accident proceeding to Watertown for the purpose of doing some work for the defendant upon the installation of certain electric wiring and fixtures; that a considerable quantity of tools, wires and fixtures were at the time being conveyed in the automobile in which he was proceeding to Watertown for the purpose stated with the knowledge and consent of the defendant;that the driver worked during regular hours and was engaged in this schedule of employment at the time of the accident; that he received for his compensation a fixed wage per week, being in the exclusive employment of the defendant.’

Thereupon the presiding judge allowed a motion for a directed verdict filed by the defendant, and the plaintiff excepted. It was agreed by the parties that, if the case should have been submitted to the jury, judgment was to be entered for the plaintiff in the sum of $2,000, otherwise judgment was to be entered for the defendant. The case is before this court upon a report of the presiding judge.

[1][2][3] The principle of respondeat superior is not applicable unless the agreed facts warranted a finding that the relation of master and servant existed at the time the plaintiff was injured, whereby the negligent act of the servant was legally imputable to the master. The test of the relationship is the right to control. It is not necessary that there be any actual control by the alleged master to make one his servant or agent, but merely a right of the master to control. If there is no right of control there is no relationship of master and servant. If the power of control rests with the person employed, he is an independent contractor. In order that the relation of master and servant may exist, the employee must be subject to control by the employer, not only as to the result to be...