Stegman v. Sturtevant & Haley Beef & Supply Co.

Carroll, J. Between eight and nine o’clock on the morning of September 30, 1919, in the city of Melrose, an automobile owned by the defendant Sturtevant and Haley Beef and Supply Company (a Massachusetts corporation having a usual place of business in Somerville and in Boston), and operated by one Dole, its travelling salesman, came into collision with an automobile owned and operated by the plaintiff Chase, in whose car the plaintiff Stegman was a passenger. Riding with Dole was a carpenter named Scannell. There was evidence that Dole was negligent and that Stegman and Chase were in the exercise of due care. Dole lived in Melrose, as did also the defendant Perkins, who was the president and general manager of the defendant corporation. Dole was not given any particular route, but “was told to get what business he could in any territory; that the chief part of his business, however, had been South Boston, Dorchester and Roxbury.” Scannell had been employed by Perkins to build and place a skylight on the roof of his house in Melrose. On the night before the accident Perkins asked Dole if it would be convenient for him to call for Scannell and bring him to the house with the skylight. Dole promised to do this; and the following morning went to the office of his employer, thence to its garage in Somerville and obtained the motor car, which he drove to Cambridge where Scannell lived and had his place of business. Not finding Scannell at his shop, Dole drove to his house, and while the two were on their way from Scannell’s house in Cambridge to the Perkins house in Melrose, Scannell holding the skylight in front of him, the collision occurred. The jury could have found that it was the intention' of Dole after reaching the Perkins house and after the work of placing the skylight was finished, to bring Perkins to Boston. There were verdicts for both plaintiffs against both defendants. In the cases against the Sturtevant and Haley Beef and Supply ¡Company, the burden of proof was upon the plaintiffs to show that Dole was, at the time of the accident, acting within the scope [273] of his employment. Dole was not at the time engaged in the business of the corporation. He was using the automobile for the benefit of Perkins as an individual, and not in the business of his employer. He was a salesman and the automobile was to be used only in the course of his employment. The conveying of Scannell f^om Cambridge to Melrose was an undertaking entirely outside the duty he owed the corporation. He was not acting as its agent or servant, and there is nothing to show that this use of the automobile was permitted or known by the corporation. The fact that Dole was directed by Perkins to use the automobile solely for the benefit of Perkins, did not make Dole the agent of the corporation in. the particular business in which he was then employed. Marsal v. Hickey, 225 Mass. 170. See Gondek v. Cudahy Packing Co. 233 Mass. 105, 112; Ginn v. Almy, 212 Mass. 486. Even if Dole intended, after the work on the skylight was completed, to carry Perkins to the place of business of the corporation, in accordance with his frequent practice, that does not show that Dole at the time of the collision was engaged in the business of the corporation, or acting within the scope of his employment. He had not completed the purpose for which he was using the automobile, and his intention, subsequently to carry Perkins from his home, does not make him the agent of the defendant corporation at the time of the accident. McKeever v. Ratcliffe, 218 Mass. 17. Fleischner v. Durgin, 207 Mass. 435. The cases against the Sturtevant and Haley Beef and Supply-Company are not within the principle stated in Donahue v. Vorenherg, 227 Mass. 1, Leonard v. Stevens, 213 Mass. 302, Bourne v. Whitman, 209 Mass. 155, 173; and the request that the plaintiffs were not entitled to recover against that defendant should have been granted. When the collision occurred Dole was carrying out the order of Perkins as an individual, and was not operating the motor car in the performance of his duties as an agent of the corporation. If Dole were in the general employment of the corporation and the automobile were owned by Perkins, who requested him to take it - to Cambridge and bring Scannell to Perkins’ house for the accomnlodation of Perkins, the jury cbuld find that at this time, and while so engaged, Dole was the servant of Perkins. [274] In Chute v. Morey, 234 Mass. 387, the driver of the car was in the employ of the Vulcan Garage Company. The defendant was the president of the company. He brought his car to the garage and told the driver “to fix it,” to “take it out and try it.” The accident happened while the driver was operating the car for the purpose of trying it out. It was held that the finding for the plaintiff was justified on the ground that the driver became temporarily the servant of the defendant. See Higgins v. Bickford, 227 Mass. 52. Although, in the present actions, the automobile was not owned by Perkins, the jury could find on the evidence that he was not authorized to use it in his private business or to instruct Dole to perform such work as he was then engaged in. If Perkins directed the operator to use it for such purpose, they could find that he assumed control and ownership of the automobile during the progress of the business, and stood, for the time being, as the owner to the same extent as if he himself had taken the car from the garage for his personal business. They could find that, by appropriating the automobile, without right, for the purpose of carrying Scannell to Melrose, he had converted it to his own use. If these facts were found, he would be liable to the same extent as if he owned the car. The jury could also find that Dole consented to become the servant of Perkins temporarily, in the performance of the particular business, and that Dole was his servant at the time in question. The jury could have found that Dole was not performing a mere act of friendly accommodation for one of his fellow employees or for a stranger to the defendant corporation. Perkins was the president and general manager, he was in a position of authority over Dole, and if Perkins directed Dole to take the property of the general employer and use it for the private business of Perkins, it could have been found that Dole did this in obedience to the directions of Perkins, as his agent or servant, and not as a mere matter of accommodation. If Perkins took the car from the garage under the circumstances disclosed for use in his own business, he could be held for negligence in its operation; and if the servant of the corporation, in obedience to his instructions and in fulfilment of his directions, obtained the car for this purpose, the finding against Perkins would be justified. The defendant Perkins’ requests were refused properly. [275] In each case against Robert A. Perkins the exceptions are overruled. In each case against the Sturtevant and Haley Beef and Supply Company, the exceptions are sustained and judgment is to be entered for the defendant. So ordered.