McCarty v. Timmins
| Decision Date | 02 April 1901 |
| Citation | 178 Mass. 378,59 N.E. 1038 |
| Parties | McCARTY v. TIMMINS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
William Burns and William Clarke, for plaintiff.
N Matthews, Jr., W. G. Thompson, and S. R. Spring, for defendant.
The only question argued by the defendant is whether, under the circumstances, he is answerable for the act of Scott in leaving the team unattended upon a public street. Upon this question it appeared that on the day of the accident Scott was, and for a long time had been, in the employ of the defendant as a driver of the hack and two horses constituting the team. Scott's business was to stand with the team near the corner of Dartmouth and Boylston streets, to solicit passengers for carriage. About 6 o'clock on the afternoon of the accident he was told by one Casey, the starter in charge of the defendant's teams, to take the team to the defendant's stable in Allston, distant westerly about a mile and a half. The team was then standing on Dartmouth street, about 160 feet north of Boylston street, facing northerly towards Commonwealth avenue; and the shortest and most direct route to the stables was northerly on Dartmouth street, then westerly on Commonwealth and Brighton avenues. Instead of taking this route, Scott turned the horses around drove southerly on Dartmouth street 160 feet to Boylston street, then westerly on this street about 3,000 feet to Massachusetts avenue, then southerly on this avenue 758 feet to Dundee street, and then he turned his horses in so as to face Dundee street. Leaving the team there unattended, he entered the saloon, where he purchased and drank some whisky. The evidence tended to show that he was in the saloon only about three minutes, but while he was there the horses ran away, the before they were stopped the team came into collision with the plaintiff's team, which was on the right-hand side of Massachusetts avenue going towards Boylston street, and the plaintiff was injured. Scott, called by the plaintiff, testified that when he turned the corner on Dartmouth street, and started down Boylston street, he was not expecting to do any busines for his employer, but was going 'to help himself.' While he was going westerly on Boylston street, which runs parallel with Commonwealth avenue, he was going in the direction of the stables; but when, on reaching Massachusetts avenue, instead of turning northerly on that avenue, he turned southerly towards Dundee street and the saloon, he was going directly away from the proper and usual route to the stables. The only witness who testified as to Scott's purpose in taking this route was Scott himself, whose testimony, in substance, was that his purpose was to get a drink.
The well-established rule as to the extent of the liability of the master for the act of his servant, so far as material to this case, is that if the act is done without the authority of the master, and not for the purpose of executing his orders or doing his work, then he is not responsible; but if it is done in the execution of the authority given by the master, and for the purpose of performing what he has directed, then he is responsible, whether the act be negligent or willful. The only trouble is in the application of the rule, and it is not easy to reconcile the cases. Scott had been employed to drive the team in the carriage of...
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