Tornroos v. R.H. White Co.

• Citation: 107 N.E. 1015,220 Mass. 336
• Parties: TORNROOS v. R. H. WHITE CO. (two cases). TORNROOS v. AUTOCAR CO. (two cases).
• Decision Date: 26 February 1915
• Court: United States State Supreme Judicial Court of Massachusetts

220 Mass. 336

107 N.E. 1015

TORNROOS

v.R. H. WHITE CO. (two cases).

TORNROOS

v.AUTOCAR CO. (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 26, 1915.

Exceptions from Superior Court, Suffolk County; William Cushing Wait, Judge.

Actions both by Karl I. Tornroos, p. p. a., and by Katherine A. Tornroos against the R. H. White Company and against the Autocar Company. Verdict for plaintiffs in each case, and defendants except. Exceptions of the Autocar Company overruled, and exceptions of the R. H. White Company sustained.

Thos. h. Buttimer and Nathaniel P. Sipprelle, both of Boston, for plaintiffs.

Walter I. Badger and Wm. Harold Hitchcock, both of Boston, for defendant Autocar Co.

G. L. Mayberry and Hutchins & Wheeler, all of Boston, for defendant R. H. White Co.

RUGG, C. J.

The material facts out of which these actions arise are these: The Autocar Company sold to the R. H. White Company two motor trucks, and agreed as a part of the contract to furnish with each a chauffeur who was a thorough mechanic, for seven days, to instruct the men of R. H. White Company without cost and to ‘garage’ the trucks, including the making of all ordinary repairs, for 12 months. The contract was in writing. During the seven-day instruction period chauffeurs took the trucks from the garage of the Autocar Company and proceeded to the stable of the R. H. White Company where one of its men boarded each of the trucks, which thereafter were used in the delivery of goods of the R. H. White Company until the end of the day, when the men of the R. H. White Company left and the trucks were then driven from its stable to the garage of the Autocar Company by the chauffeurs. During the day the servants of the R. H. White Company gave directions as to the streets and houses to which the trucks should be driven in the delivery of goods, but the manner and speed of driving was wholly within the control of the chauffeurs, who were skilled mechanics in the general employ of the Autocar Company. On one of the journeys from the garage of the Autocar Company to the stable of the R. H. White Company during the seven-day period, and when the chauffeurs employed and paid by the Autocar Company were alone on the trucks, the plaintiff Karl was injured, as has been settled by the verdict of the jury, while he was in the exercise of due care, through the negligence of the driver of one of the trucks. The jury found specifically that the negligent chauffeur at the moment of the accident was a servant both of the R. H. White Company and of the Autocar Company. It is contended by each of the defendants that as to it this finding was unwarranted and that a verdict should have been directed in its favor.

The general principles of law which govern cases of this kind have been considered frequently and are well settled. In their application distinctions of nicety may arise when one in the general employment of another is by his consent lent or hired by his master to work for a third in some special service. The test to determine the legal responsibility of that third person for his conduct is, whether in the particular service performed by him he continues liable to the control and direction of his master as to the means to be employed, and the result to be achieved, or becomes subject to that of the third person. This must be considered, as was said by Chief Justice Knowlton in Shepard v. Jacobs, 204 Mass. 110, at page 112, 90 N. E. 392, at page 393 [26 L. R. A. (N. S.) 442, 134 Am. St. Rep. 648] not merely with reference to ‘the general business which the act is intended to promote, but the particular business which calls for the act, in the smallest subdivision that can be made of the business in reference to control and proprietorship.’ The particular business which the negligent chauffeur was engaged in doing at the time of the accident was that of driving the truck. The driving of the truck during the seven-day period was by the terms of the contract exclusively within the control and direction of the Autocar Company. The truck was being driven to the place where the instruction of the servant of the R. H. White Company was to begin. But that place had not been reached. The man to the instructed had not yet appeared on the scene. The instruction had not begun. No employé of that company was on the truck at the time. It was not being used in its business of delivering goods. It was not even being employed for the instruction of its servant. It was wholly in the management and control of the Autocar Company. It was being taken by the company pursuant to its contract to a point where further performance of its contract was to take place. The business of the R. H. White Company had not begun. The only matter about which that company could then have given any authoritative direction was at most as to the place where the instruction should be given and to which the truck should be taken for that purpose. But it could say nothing respecting the route, speed or general or particular method of driving. Its representative was not present and was not intended to be present at the time of the accident, because its business then was not being done. It was not in a position and had no power to give any direction as to the particular matter of neglect which caused the injury. The chauffeur was not selected by the R. H. White Company. It did not hire him nor could it discharge him, or refuse to accept him provided he was competent; it did not pay him directly or indirectly save as his compensation may have been included in the cost of the truck. The circumstance that the truck belonged to the R. H. White Company is an important but not decisive factor. See Trombley v. Stevens-Duryea Co., 206 Mass. 516, 92 N. E. 764. It is not quite enough to countervail those mentioned, which, being substantially undisputed, show as matter of law that the injuries to the plaintiffs were not caused by the R. H. White Company. On this point the case is close to the line and there are none of our decisions precisely in point, but Bowie v. Coffin Valve Co., 200 Mass. 571, 86 N. E. 914, Id.,206 Mass. 305, 92 N. E. 334,Dutton v. Amesbury National Bank, 181 Mass. 154, 63 N. E. 405, and Fleischner v. Durgin 207 Mass. 435, 93 N. E. 801,33 L. R. A. (N. S.) 79,20 Ann. Cas. 1291, are somewhat analogous and like conclusions there were reached. Kellogg v. Church Charity Foundation, 203 N. Y. 191, 96 N. E. 406, 38 L. R. A. (N. S.) 481, Ann. Cas. 1913A, 883, and note, 885, and Quarman v. Burnett, 6 M. & W. 497, go further than is required to relieve the R. H. White Company from liability. In those two cases the defendants owned the vehicles, which were being used in their business by a driver furnished under contract by a third person who alone had the authority to fire, discharge and direct the driver as to the details of his duty of driving, and they were exonerated from liability. Other cases on all fours with the cases against the R. H. White Company hold that the defendant is not liable. Neff v. Brandeis, 91 Neb. 11, 135 N. W. 232,39 L. R. A. (N. S.) 933;Ouellette v. Superior Motor & Machine Works, 157 Wis. 531, 147 N. W. 1014,52 L. R. A. (N. S.) 299. See also Meyers v. Tri-State Automobile Co., 121 Minn. 68, 140 N. W. 184,44 L. R. A. (N. S.) 113;Dalrymple v. Covey Motor Car Co., 66 Or. 533, 135 Pac. 91,48 L. R. A. (N. S.) 424.

It is plain from what has been said that the Autocar Company is liable. The injuries were the direct result of a negligent doing of its business by its servant hired by it and at the moment engaged in the performance of his duty as its employé. The actions against that defendant are well within numerous of our cases. They are in legal intendment almost exactly like Roach v. Hinchcliffe, 214 Mass. 267, 101 N. E. 383. They are in principle indistinguishable from Driscoll v. Towle, 181 Mass. 416, 63 N. E. 922,Corliss v. Keown, 207 Mass. 149, 93 N. E. 143,Hunt v. New York, New Haven & Hartford Railroad, 212 Mass. 102, 98 N. E. 787,40 L. R. A. (N. S.) 778,Brow v. Boston & Albany Railroad, 157 Mass. 399, 32 N. E. 362,Hussey v. Franey, 205 Mass. 413, 91 N. E. 391,137 Am. St. Rep. 460, Pigeon's Case, 216 Mass. 51, 54, 102 N. E. 932, and Standard Oil Co. v. Anderson, 212 U. S. 215, 29 Sup. Ct. 252, 53 L. Ed. 480.

The Autocar Company furnished chauffeurs for the operation of the trucks to the R. H. White Company after the expiration of the seven-day period. Bills for these were put in evidence. They covered the entire period beginning with the first day with a credit ‘less seven days no charge.’ They contained this clause, ‘Cars operated by our employés only at owner's risk.’ The court rightly ruled that this sentence...