W.S. Quinby Co. v. Estey

• Citation: 221 Mass. 56,108 N.E. 908
• Parties: W. S. QUINBY CO. v. ESTEY.
• Decision Date: 19 May 1915
• Court: United States State Supreme Judicial Court of Massachusetts

221 Mass. 56

108 N.E. 908

W. S. QUINBY CO. v. ESTEY.

Supreme Judicial Court of Massachusetts, Suffolk.

May 19, 1915

COUNSEL

Warner v. Taylor, of Boston, for plaintiff.

Alfred W. Putnam, of Boston, for defendant.

OPINION

CARROLL J.

The plaintiff hired of the defendant, who was a teamster, a horse, wagon and driver for the sum of $29 a week, to deliver the merchandise of the plaintiff. The driver, Day, was paid by the defendant, and while carrying 17 chests of tea belonging to the plaintiff, from the Metropolitan Steamship Company's wharf to the warehouse of the plaintiff, they were lost. This suit is to recover their value. The jury found specifically that the tea was lost through Day's carelessness and that he was not the servant or employé of the plaintiff. The case is before us upon requests of the defendant that while Day was in the general employ of the defendant, he was so far under the direction and control of the plaintiff that he became its servant and ceased to be the servant of the defendant.

When a servant or agent in the general employ of one person is sent to work for another, he does not become the servant of the one to whom he is sent merely because the latter directs what work is to be done, or in what way it is to be done. The original master remains liable and the employé remains his agent, unless the authority to direct and control the servant in all the details of the transaction is surrendered to some other person, so that the business in which the servant is engaged is no longer the business of his general employer but is in all respects the business of the person to whom he is sent. If the servant remains subject to the general orders of the man who hires and pays him he is still his servant although specific direction may be given him by another person, from time to time as to the details of the work and the manner of doing it. Tornroos v. R. H. White Co., 220 Mass. 336, 107 N.E. 1015; Hunt v. New York, New Haven & Hartford Railroad, 212 Mass. 102-107, 98 N.E. 787, 40 L. R. A. (N. S.) 778; Hussey v. Franey, 205 Mass 413, 91 N.E. 391, 137 Am. St. Rep. 460; Shepard v. Jacobs, 204 Mass. 110, 90 N.E. 392, 26 L. R. A. (N. S.) 442, 134 Am. St. Rep. 648; Oulighan v. Butler, 189 Mass. 287, 75 N.E. 726; Delorey v. Blodgett, 185 Mass. 126, 69 N.E. 1078, 64 L. R. A. 114, 102 Am. St. Rep. 328; Driscoll v. Towle, 181 Mass. 416, 63 N.E. 922. It was for the jury to say what the contract of the parties was and what conclusions should be drawn from the evidence concerning the relations of Day to the plaintiff and to the defendant. Cain v. Hugh Nawn Contracting Co., 202 Mass. 237, 88 N.E. 842. A witness of the plaintiff testified that the...