HERBERT F. PATTERSON vs. ROBERT W. BARNES.

QUA, J. 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

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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

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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, 117; Cargill v. Bower, 10 Ch. D. 502, at page 514. Compare Slowik v. Union Street Railway, 282 Mass. 249; Stegman v. Sturtevant & Haley Beef & Supply Co. 243 Mass. 269.

The judge's ruling was not rendered harmless by the statement by the members of the jury in answer to a question of the judge that they had found the plaintiff "contributorily negligent." Even if this referred to personal negligence of the plaintiff, although he was not driving the automobile, the answer was of no effect in the case. The jury had returned a general verdict for the defendant which had been accepted by the judge and duly recorded by the clerk. On the next day, without the knowledge of the plaintiff, the judge "assembled the jury," propounded to them a question as to contributory negligence of the plaintiff,

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and received the foregoing answer. The practice of asking juries suitable questions designed to elicit specific findings which may have the effect of eliminating doubtful questions of law is favored by an express provision of statute (G. L. [Ter. Ed.] c. 231, Section 124) and has been liberally upheld in many decisions, including cases where questions have been asked and answered orally upon the return of a verdict. [Note 1] But a time must come when a trial ends and when the parties can safely cease attendance upon the court. See Kullberg v. O'Donnell, 158 Mass. 405. Ordinarily that time in jury cases is the time of the formal acceptance and recording of a verdict decisive of the whole case. James v. Boston Elevated Railway, 213 Mass. 424, 427. Brown v. Dean, 123 Mass. 254, 267. Byrne v. Boston Elevated Railway, 198 Mass. 444, 451. Flaherty v. Boston Elevated Railway, 235 Mass. 422, 424. Traverse v. Wing, 256 Mass. 320, 323. Newell v. Rosenberg, 275 Mass. 455, 459. Commonwealth v. Green, 302 Mass. 547, 557. After the verdict was accepted and recorded the judge had no power to ask the jury questions. Green v. Clay, 10 Allen 90, 93. Coffin v. Jones, 11 Pick. 45. A statement in Dorr v. Fenno, 12 Pick. 521, at page 525, which might be thought to be contrary is probably to be explained either on the ground that the questions were asked for the purpose of ascertaining with reference to a new trial whether there had been improper conduct on the part of the jury and not for the purpose of inserting special findings into the verdict, or perhaps on the ground that the questions were asked "immediately after the affirmance of the verdict" (page 525) and so became part of the act of affirmance. Otherwise the statement, if broadly construed, is opposed to later decisions hereinbefore cited.

Exceptions sustained.