Murray v. Postal Telegraph & Cable Co.
| Decision Date | 21 October 1911 |
| Citation | 210 Mass. 188,96 N.E. 316 |
| Parties | MURRAY v. POSTAL TELEGRAPH & CABLE CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Oct 21, 1911.
Warner & Barker, for plaintiff.
Carver Wardner & Goodwin, G. Philip Wardner, and Clifford H. Walker, for defendant.
The instructions as to liability under which a general verdict was returned for the company were largely, if not wholly, predicated upon Haskell v. Boston District Messenger Co., 190 Mass. 189, 76 N.E. 215, 2 L. R. A. (N. S.) 1091, 112 Am. St. Rep. 324, and portions of the opinion defining the implied contract or duty of the defendant in that case, and the care required in the selection of messengers, were quoted as applicable in the case at bar. But the ground upon which the defendant was exonerated rested upon the contract with the plaintiff; and it was accordingly held that as the messenger received his instructions directly from the plaintiff he became the plaintiff's servant during the time of service, even if he continued in the general employment of the company.
It was further decided that, under the bailment, the defendant did not assume the liability of a common carrier, but contracted only that the messenger furnished should be a suitable person for the performance of the duty intrusted to him. Haskell v. Boston District Messenger Co., 190 Mass. 189, 192, 194, 76 N.E. 215, 2 L. R. A. (N. S.) 1091, 112 Am. St. Rep. 324. The duties and liability of the defendant in the present case, however, must depend upon the contract between the parties, and the first inquiry is whether one Tierney, who was sent to the plaintiff in response to a call from her for a messenger, became her servant or agent, and for whose subsequent conduct the defendant should not be held responsible. It was not in dispute that, although formerly a messenger, he had become a clerk having charge of the defendant's messengers, and that the plaintiff, who on former occasions had dealt with him as a messenger before he became clerk, and in whom because of his efficiency and honestly she reposed great confidence, was ignorant of the change in employment.
The jury upon the evidence would have been justified in finding that, when the plaintiff delivered to him the bundle containing the gowns, she understood and believed that he was still in the defendant's general employment as messenger, and that, having been sent at her request, he was subject to her orders for the time being. It is manifest that Tierney remained the servant of the defendant. The duty which he owed to the company of supervision of its messenger boys, whose services might be required at any moment by customers, precluded his acting for the plaintiff as an errand boy, whom she could command, and whose acts she could control until the purpose for which she wished the aid of a messenger had been accomplished. See Bowie v. Coffin Valve Co., 200 Mass. 571, 578, 86 N.E. 914; Shepard v. Jacobs, 204 Mass. 110, 90 N.E. 392, 26 L. R. A. (N. S.) 442, 134 Am. St. Rep. 648.
It is contended by the defendant, that it was accustomed to substitute for the messenger who answered a patron's call, and to whom the carriage and delivery of parcels had been committed by the patron, another messenger to perform the service, if the convenient management of its business required the change, and the jury were instructed that the substitution could be properly made. But it is only where the principal assents, or where from the nature of the agency a subagent necessarily must be employed in transmission, that the assent of the principal is implied. Dorchester & Milton Bank v. New England Bank, 1 Cush. 177, 186; Lowell Wire Fence Co. v. Sargent, 8 Allen, 189, 192.
The defendant sent Tierney not as its messenger but as its clerk, and the jury upon the uncontradicted evidence could have found that the plaintiff, believing him to be a messenger, not only gave him specific directions for his guidance, but intrusted to him alone the duty of delivery. No express contract having existed for want of a mutual understanding between the parties, and the defendant as a bailee for compensation having voluntarily accepted the gowns to be forwarded, and assumed the control and care of them, their subsequent delivery by Tierney to the defendant's employé and messenger boy, one Schwatz, whom he selected, did not constitute Schwatz the plaintiff's servant or agent. The defendant was fully informed of the nature and particulars of the service required.
If through the negligence of Tierney in misdirecting the bundle when he returned to the defendant's office, or through the negligence of Schwatz, as the jury would have been warranted in finding upon the evidence, the gowns were never delivered to the plaintiff's customer, the defendant would be liable for the loss. Newhall v. Paige, 10 Gray, 366; Maynard v. Buck, 100 Mass. 40, 47; Wood v. Remick, 143 Mass. 453, 9 N.E. 831; American District Telegraph Co. v. Walker, 72 Md 454, 20 A. 1, 20 Am. St. Rep. 479; Sleat v. Flagg, 5 B. & A. 342. The plaintiff's first, second and fourth requests should have been given, and the instructions that Schwatz was the plaintiff's servant, for whose conduct the defendant would not be responsible, unless the jury found that the defendant did not exercise ordinary care in his...
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