Kimball v. Cushman

103 Mass. 194

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1869
• Status: Published

Opinion

Wells, J.

There was some evidence, competent to be submitted to the jury, and from which they might infer that, in the care and exercising of the horse, and in the main purpose for which he was out with the horse on the occasion in question, Charles H. Flanders was the servant of the defendant. It is not necessary that he should be shown to have been in the general employment of the defendant, nor that he should be under any special engagement of service to him, or entitled to receive compensation from him directly. It is enough that, at the time of the accident, he was in charge of the defendant’s property by his assent and authority, engaged in his business, and, in respect to that property and business, under his control. Wood v. Cobb, 13 Allen, 58. The fact that there is an intermediate party, in whose general employment the person, whose acts are in question, is engaged, does not prevent the principal from being held liable for the negligent conduct of the subagent or uuderservant, unless the relation of such intermediate party to the subject matter of the business in which the underservant is engaged, be such as to give him exclusive control of the means and manner of its accomplishment, and exclusive direction of the persons employed therefor.

In this case, there was no contract with Joseph Flanders such as would exclude the defendant from control of and responsibility for the acts of Charles H. Flanders in the service upon which the latter was engaged; and we think it was rightly left to the jury to determine, upon all the evidence in the case, whether there was such control and responsibility; that is, whether, on the occasion in question, Charles was acting as the servant of the defendant, in his business and with his assent and authority. The jury having, under proper instructions, found that he was so, their verdict must stand.

Exceptions overruled.