THERESA KONICK & another vs. BERKE, MOORE COMPANY, INC. & another.

SPALDING, J. In this action of tort two minor plaintiffs seek to recover for injuries sustained when they were struck by an automobile owned and operated by the defendant Mortimer M. Prescott. The declaration contained four counts. Counts 1 and 3 are on behalf of Theresa Konick and Stephen Konick, respectively, against Prescott. Counts 2 and 4 are on behalf of these plaintiffs against the defendant Berke, Moore Company, Inc. (Company) alleging negligence on the part of its servant, Prescott. The judge directed verdicts for the Company on these counts, subject to the plaintiffs' exceptions. The counts against Prescott were submitted to the jury and a verdict in favor of each plaintiff was returned. The sole question is whether the judge erred in directing verdicts for the Company on counts 2 and 4. It is conceded that the evidence warranted a finding that Prescott was negligent and that the plaintiffs were in the exercise of due care. The question is whether the Company could be found liable for Prescott's conduct under the doctrine of respondeat superior.

We summarize the evidence as follows: The accident occurred on Charles Street, Boston, on July 9, 1959. At that time Prescott was working for the Company as a salaried employee. The Company was a general contractor and was engaged on a "job" in Chelsea. Prescott was a timekeeper on that job. During the morning Prescott was instructed by one Moore, his supervisor, to "jump in the car and get the payroll" at the Company's office on Newbury Street in Boston. He was not told what car to take, but other than

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his own, there was only one car at the job site and that belonged to Moore.

Prescott drove in his own car from Chelsea to Boston by way of the Mystic River Bridge, which he considered was the "most direct route." The route chosen and the speed of the car were determined by Prescott. The accident occurred before he reached the office in Boston. The Company, as was its practice, later reimbursed him for the toll fee which he paid to cross the bridge. In addition, the Company paid for gas and oil used by Prescott. The car was registered in Prescott's name and both the registration fee and the operator's license were paid for by him. When he was first employed in 1950, he was not required to own a car as a condition of employment.

The Company may be liable under the doctrine of respondeat superior only if Prescott was its servant. The general rule laid down by our cases is that in order for the relation of master and servant to exist, "the employee must be subject to control by the employer, not only as to the result to be accomplished but also as to the means to be used." Khoury v. Edison Elec. Illuminating Co. 265 Mass. 236, 238. Restatement 2d: Agency, Section 220 (1), also stresses the importance of control by defining a servant as "a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control."

Although it generally is agreed that the right to control is the decisive factor, the test is applied differently in various jurisdictions to situations where employees were involved in accidents while negligently driving their own cars. In Pyyny v. Loose-Wiles Biscuit Co. 253 Mass. 574 (the case most heavily relied on by the Company), the employee, a traveling salesman, was his own master in respect to the time he should devote to the defendant company's business and to the places within his designated territory where he should solicit sales. The court, in holding that the employee was an independent contractor rather than a servant,

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pointed out that it was the employee's, not the company's, duty to register his car and obtain a license and that the company did not have the right to direct the manner in which the employee should operate his car.

Later decisions have relied, at least in part, on the company's lack of the right to control the manner in which the employee drove his car in holding that no master-servant relationship existed. Khoury v. Edison Elec. Illuminating Co. 265 Mass. 236. Wescott v. Henshaw Motor Co. 275 Mass. 82, 87. Reardon v. Coleman Bros. Inc. 277 Mass. 319, 322. Hailer v. American Tool & Mach. Co. 288 Mass. 66. Shea v. Bryant Chucking & Grinder Co. 336 Mass. 312, 314. Gladney v. Holland Furnace Co. 336 Mass. 366, 368. See Conversions & Surveys, Inc. v. Roach, 204 F. 2d 499 (1st Cir.). Tavolieri v. Allain, 222 F. Supp. 756 (D. Mass.). An employee while driving his own car may be an independent contractor, even though he would be a servant when performing other jobs. Shea v. Bryant Chucking & Grinder Co., supra, 314. Our decisions, however, have recognized that there may be sufficient evidence of a master-servant relationship to go to the jury if an officer of the company has instructed the employee what route to follow and could have told him how to drive his car en route. Marrone v. Rand-Whitney Corp. 353 Mass. 766.

The plaintiffs seek to show that this case is controlled by Marrone v. Rand-Whitney Corp., supra, rather than the line of decisions following Pyyny v. Loose-Wiles Biscuit Co. 253 Mass. 574. But here, unlike the situation in the Marrone case, the employee Prescott chose the route he took, and there was no evidence that the Company had the right to instruct him as to the manner or means of performing his work. Although the facts in the case at bar are not identical to those in the Pyyny case or in the cases which rely on it, the differences are not substantial nor significant, and it is clear that under those decisions Prescott would be classified as an independent contractor. Thus, under the existing law the judge was constrained to order verdicts for the Company.

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Alternatively, the plaintiffs ask that we abandon the principle that to establish the relationship of master and servant where the servant drives his own car the master's right to control must extend to the manner and means of performing the task requested. In a few jurisdictions the rule is similar to ours. See, e.g., McCarthy v. Souther, 83 N. H. 29; American Natl. Ins. Co. v. Denke, 128 Texas, 229, and Stockwell v. Morris, 46 Wyo. 1. But this is apparently the minority view and has been rejected and criticised by other courts. Cook v. Sanger, 110 Cal. App. 90, 101-102. Hogan v. Chicago, 319 Ill. App. 531. Heintz v. Iowa Packing Co. 222 Iowa, 517. Webster v. Mountain States Tel. & Tel. Co. 108 Mont. 188. Peterson v. Brinn & Jensen Co. 134 Neb. 909, 911. Kohl v. Albert Lifson & Sons, Inc. 128 N. J. L. 374. Gutov v. Krasne, 266 App. Div. (N. Y.) 302, 305 (applying New Jersey law but indicating that New York law is the same). Other cases, in holding that a master-servant relationship may have existed, do not even mention whether the employer had a right to control the actual operations of the car, and thus imply that there is no such requirement. Southern Natl. Ins. Co. v. Williams, 224 Ark. 938. Frankle v. Twedt, 234 Minn. 42. See also Annotation, 53 A. L. R. 2d 631.

Some of the decisions which do not follow the rule laid down in such cases as Pyyny v. Loose-Wiles Biscuit Co. 253 Mass. 574, suggest that the crucial question is the right to control the driver's general activities, not the physical control of the car. See, e.g., Peterson v. Brinn & Jensen Co. 134 Neb. 909. In other words, if there is a right to control the employee's general activities, he is a servant, even though the master may not have the right to control the details of the operation of the car when the servant is carrying out an errand for his master. Thus, as was said by the Court of Appeals for the Fifth Circuit in Hinson v. United States, 257 F. 2d 178, 181, "Control or the right to control the manner or means of performing the task hardly seems decisive. If the relationship of master and servant exists and if what the employee is doing is in the furtherance of the master's business,

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i.e. in the scope of his employment, the law gives the master the right of direction and control."

We are of opinion that we should no longer follow our cases to the extent that they indicate that a master-servant relationship does not exist unless the employer has a right to control the manner and means (the details, in other words) of operating the car. In the circumstances here, where Prescott clearly was a servant in relation to his duties as a timekeeper, where he was instructed to do a specific job, and where he had at least implicit permission to use his own car, the fact that he chose the route and his speed does not change his status to that of an independent contractor. Accordingly, the verdicts for the Company should not have been directed, and the plaintiffs' exceptions to this action must be sustained.

The jury returned verdicts against Prescott for Theresa and Stephen Konick for $130,000 and $2,000, respectively. The plaintiffs urge (without citation of authority) that the damages were thus established and that on a retrial only the issue of the existence of the master-servant relationship should go to the jury. But the judgments against Prescott do not bind the Company, although it cannot be held liable for an amount in excess of the judgments against him. Barry v. Keeler, 322 Mass. 114. Restatement: Judgments, Section 96. Annotation, 141 A. L. R. 1168, 1172. Despite the fact that the Company participated in the trial until the verdicts were directed at the close of all the evidence, the Company never had its rights and liabilities determined by the jury. No verdict was ever returned against the Company, and therefore it had no occasion to seek a remittitur, to ask for a new trial, or to obtain appellate review. In short, it has never had its day in court on the issue of damages. In these circumstances, upon a new trial, the Company has the right to have all issues retried. See DiCarlo v. Scoglio, 317 Mass. 773.

Exceptions sustained.