Healey v. American Tool & Machine Co.

Pierce, J. There was no error in the refusal to rule as requested. There was direct, positive and inferential testimony from which the jurymight find or infer that Professor Comfort A. Adams, for a stated sum per month, undertook to ascertain whether motors [238] purchased by the defendant, when used in connection with a basket or extractor made by the defendant, would do work which the defendant, in selling them in combination, specified that they would do; that in coming to a conclusion he or his assistant made many detailed tests, the choice of which or the determination of their adaptability and adequacy to the end to be attained varied with the particular fact, although not necessarily the ultimate one, to be ascertained; that the determination of the method to be pursued and Of the means to be adopted, used or rejected rested in their absolute discretion and judgment; and that in the execution of the work neither he nor his assistant were bound or required to follow, if given, the defendant’s direction. The jury also might find upon positive, direct and inferential testimony that Healey the intestate was not in the general or special employment or service of the defendant; that as between Healey and the defendant there existed no contract, either express or implied in fact, upon which the relation of master and servant could be established or predicated. In addition to the foregoing general finding, the jury could find specially that Healey was hired, paid, directed, instructed, advised and controlled in the performance of his work by Professor Adams; that the defendant never paid him, nor before the accident claimed that in paying Adams it was indirectly paying Healey as its servant; that it never had given Healey any direction or suggestion, or asserted the right to control him in the performance of the work which Adams had sent bim to do, or claimed that he was bound to obey, as its servant, any proper order. Under such finding, if made, Adams was an independent contractor, doing his own work in his own way, save so far as the terms of his contract otherwise provided. Wood v. Cobb, 13 Allen, 58. Ward v. New England Fibre Co. 154 Mass. 419. Delory v. Blodgett, 185 Mass. 126, 128. Healey under such findings was the servant of Adams and as such was not bound to obey the defendant and was not subject to its control, Hooe v. Boston & Northern Street Railway, 187 Mass. 67. McLellan v. Boston & Maine Railroad, 212 Mass. 153, 155. The single exception to the admission of testimony is not argued and is treated as waived. Exceptions overruled.