Hussey v. Franey

Morton, J. The principal question in this case is whether Duggan, the driver of the hack, was at the time of the accident the servant of the defendant, or of Conklin, to whom the defendant had let the hack with the horses and driver, or of Hogue, the director of the funeral procession of which the hack formed a part. There was nothing to show, or at least it cannot be said that it could not have been found, that the hack with the driver and horses was not let in the usual manner, with the implied understanding that the driver remained the servant of the defendant, and as such had the management of the horses and exercised care and oversight over them and the hack, but was to obey such directions as to the use to be made of the hack as might be given to him by the person to whom the hack, driver and horses were let. Under such circumstances it is clear that the defend [416] ant would be liable for injuries suffered by a third person in consequence of the driver’s negligence. Shepard v. Jacobs, 204 Mass. 110, and cases cited. Driscoll v. Towle, 181 Mass. 416. Randolph v. O’Riordon, 155 Mass. 331. Standard Oil Co. v. Anderson, 212 U. S. 215. Dewar v. Tasker & Sons, 23 T. L. R. 259, 260. There is no just ground for the contention that the driver was the servant of either Conklin or Hogue. Conklin simply sent the hack and driver to Hogue, and Hogue, beyond riding on the hearse with the driver and thus setting the pace for the procession and beyond indicating to Duggan his place in the procession, exercised no control whatever over him. It is plain that there was evidence of negligence on the part of Duggan. No contention is made that the plaintiff was not in the exercise of due care. There was no evidence to warrant a finding that Bakeman wilfully interrupted or otherwise disturbed the funeral procession in violation of R. L. c. 212, § 34, even if we assume in the defendant’s favor without deciding that, if he had done so, it would have operated to prevent the plaintiff from recovering. Exceptions overruled.