Samuelian v. American Tool & Machine Co.

Knowlton, J. The only ground on which the plaintiff seeks to hold the defendant liable is that Guell was engaged as a servant of the defendant in the work in which he is alleged to have been negligent. The burden of proof was on the plaintiff to show this. There was no evidence to sustain this burden. Upon the undisputed testimony, Guell was repairing machinery of the Collins Press Corporation, and the defendant had no other connection with the business than to send him to do, in the service of this corporation, under the direction of its agents, whatever they wanted him to do in repairing machinery. There was no evidence that tended to contradict the testimony that, while he was engaged in this service, he was under the control of these agents, who could at any moment tell him to stop or go forward with the work, and could insist that it should be done in one way or another, as they should think best. The fact that they relied largely upon his skill and experience did not affect their absolute right to control him in everything he did upon their [15] machinery. He was therefore, for the time, the servant of the Collins Press Corporation, and not of the defendant. The law in cases of this kind has often been considered by this court, and is well settled. In Ward v. New England Fibre Co. 154 Mass. 419, is this language: “ The defendant corporation contends that, although he was in the general service of Manchester and Ward and received his pay from them, he consented that they should set him to do the defendant’s work, to be paid for by the defendant according to the time spent upon it, and to be done according to specifications prepared by the defendant’s superintendent, and to be managed and directed by the defendant during its progress. If this were so, he would be the defendant’s servant in the particular business, notwithstanding that in a general sense he was a? servant of Manchester and Ward.” In Coughlan v. Cambridge, 166 Mass. 268, 277, the court says: “ It is well settled that one who is the general servant of another may be lent or hired by his master to another for some special service, so as to become as- to that service the servant of such third party. The test is whether, in the particular service which he is engaged to perform, he continues liable to the direction and control of his master or becomes subject to that of the party to whom he is lent or hired.” Hasty v. Sears, 157 Mass. 123, is a case very similar to the one at bar. See also Kimball v. Cushman, 103 Mass. 194; Johnson v. Boston, 118 Mass. 114; Morgan v. Smith, 159 Mass. 570. Exceptions overruled.