Patterson v. Barnes
| Decision Date | 28 February 1945 |
| Citation | 317 Mass. 721,60 N.E.2d 82 |
| Parties | HERBERT F. PATTERSON v. ROBERT W. BARNES. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
December 4, 1944.
Present: FIELD, C.
J., QUA, DOLAN RONAN, & WILKINS, JJ.
Agency, What constitutes. Practice, Civil, Question to jury.
A ruling, at the trial of an action for personal injuries sustained in a collision of automobiles, that as a matter of law the operator of the automobile in which the plaintiff was riding was the agent or employee of the plaintiff, was error although the plaintiff had testified that the operator was "under . . . [his] control," where he also had testified that the automobile was owned by a corporation of which he was the president and a salesman, that at the time of the accident he was on his way to see a prospective customer to sell products of the corporation, that the operator was an employee of the corporation and it was his duty to drive the salesmen where they wished to go on business, and that he had told his driver where to go: a finding would have been warranted either that the plaintiff did not have the right to control the details of the method of operating the automobile or that, if he did have such right of control, he had it only as agent of the corporation the common employer of himself and the operator, and that the operator was not performing any service in the plaintiff's personal affairs.
An answer by a jury, in response to a question asked them by the judge without the knowledge of one of the parties the next day after they had returned a verdict and it had been recorded had no effect.
TORT. Writ in the District Court of Southern Essex dated August 31, 1940.
On removal to the Superior Court, the action was tried before Morton, J. There was a verdict for the defendant. The plaintiff alleged exceptions.
R. L. Sisk, for the plaintiff. W. G. Clark, for the defendant, submitted a brief.
The plaintiff was injured on October 31, 1939, when an automobile driven by the defendant collided with an automobile in which the plaintiff was riding.
The plaintiff testified, in substance, that he was the president and a salesman of Ackerman & Patterson, Inc., a corporation engaged in the sale of leather products; that at the time of the accident he was on his way to see a prospective customer in an effort to sell products of the corporation; that the automobile in which he was riding was owned by the corporation and was operated by one Madden, an employee of the corporation, whose duties were "to drive the salesmen where they wished to go on business"; that he had told his driver where to go; and that his driver was "under . . . [his] control" and went wherever he told him to go.
The judge ruled as matter of law that Madden was "the agent or employee" of the plaintiff and therefore instructed the jury that the plaintiff had the burden of proving that Madden was in the exercise of due care. Bullard v. Boston Elevated Railway, 226 Mass. 262 , 266-268. Mendolia v. White, 313 Mass. 318, 321. Prout v. Mystic Motor Trans. Co. Inc., ante, 349, 350.
The ruling that as matter of law Madden was the agent or employee of the plaintiff was wrong. To be sure, the plaintiff was bound by his own testimony in the absence of other evidence more favorable to him. But he testified that Madden was employed by the corporation to drive its salesmen about. From this the jury could find that Madden was not the servant of the plaintiff personally. The ruling of the judge seems to have been based upon the plaintiff's testimony that the driver was under his control. The right to control the particular details of the work is often decisive as to the existence of a master and servant relationship, especially where the issue is whether the employee is a servant or an independent contractor or whether he is the servant of one or another of two possible masters. See, for example, Marsh v. Beraldi, 260 Mass. 225, 231; Khoury v. Edison Electric Illuminating Co. 265 Mass. 236 , 238; Reardon v. Coleman Bros. Inc. 277 Mass. 319 , 321-322; Shepard v. Jacobs, 204 Mass. 110; Goyette v. P. J. Kennedy & Co. Inc. 277 Mass. 283 , 285. See Am. Law Inst. Restatement: Agency, Sections 220, 227. But the control which establishes that relationship must extend much farther into the minutiae of the alleged servant's conduct than merely telling him where to go. Almost every hirer of a vehicle with a driver tells the driver where to go, but he does not necessarily make the driver his servant. Shepard v. Jacobs, 204 Mass. 110 . Tornroos v. R. H. White Co. 220 Mass. 336 . W. S. Quinby Co. v. Estey, 221 Mass. 56 . Peach v. Bruno, 224 Mass. 447 . Clancy's Case, 228 Mass. 316 , 318. The jury could have found upon the evidence hereinbefore stated that when the plaintiff spoke of "control" he meant no more than the right to direct the driver to what place he should drive. Santoro v. Bickford, 229 Mass. 357 , 359.
But even if the jury found that the plaintiff had the right to do more than direct the driver where to go, and that he had the right to direct the particular details relating to the method of driving, they were still not bound to find that Madden was the agent or servant of the plaintiff. One fundamental element in every master and servant relationship or in any agency is that the alleged agent or servant does something for or in behalf of the alleged principal or master. The American Law Institute defines a servant as "a person employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master." Restatement: Agency, Section 2. See also Section 220, and definition of agency in Section 1 (1). The jury were not obliged to find that Madden performed any service in the plaintiff's affairs. They could find that the only affairs in which both Madden and the plaintiff were interested were the affairs of the corporation by which both were employed; that Madden and the plaintiff, with respect to driving the automobile, were at most merely fellow servants of a common employer; and that any directions or orders which the plaintiff had the right to give to Madden were not the plaintiff's own directions or orders but were those of the common employer delivered through the plaintiff as its agent. "The doctrine of respondeat superior does not apply to create liability against an agent, even though other agents are subject to his orders in the execution of the principal's affairs." Am. Law Inst. Restatement: Agency, Section 358, comment a. Restatement: Torts, Section 491, comment d. Shearman and Redfield on Negligence (Rev. ed.) Section 265. Hewett v. Swift, 3 Allen, 420, 425. Santoro v. Bickford, 229 Mass. 357 . Tibbetts v. Wentworth, 248 Mass. 468 , 471-473. Withington v. Jennings, 253 Mass. 484 , 486. Handley v. Lombardi, 122 Cal.App. 22, 28-29. Brown v. Lent, 20 Vt. 529, 533.
If the ruling of the judge were to be sustained it would seem to follow that every member of an ordinary gang of laborers would, as matter of law, be the servant of his foreman instead of the common employer. Or would he be the servant of both although the employer and the foreman were not engaged in a joint enterprise? Either proposition is unsound and inconsistent with established principles of the law of agency. See Skerry v. Rich, 228 Mass. 462; Ducey v Brunell, 250 Mass. 114 ,...
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