Agency, Existence of relation.
In an action against a machine company for injury to the plaintiff's horse and wagon from being run into by a motor truck belonging to the defendant by reason of the negligence of the driver of the truck, the defendant denied that the driver of the truck was its servant. It appeared that the driver was paid by a milk company that had hired the motor truck from the defendant while one of its own motor trucks was being repaired by the defendant, that when the truck was hired the defendant's manager told an agent of the milk company, who had asked for a truck and driver, that he had no driver to send and that, if the agent of the milk company wanted the truck, he would have to put on his own driver, and the agent of the milk company testified that then "I told him that, if I put on my driver, he would have to be responsible for it," and "I don't think he made any reply." At the time of the accident the motor truck was being used to transport milk for the milk company. Held, that there was no evidence that the driver of the motor truck was the servant of the defendant, and that the plaintiff had no right to go to the jury; that, even if the silence of the defendant's manager was evidence of an implied assent to the proposition made to him, this was not evidence that the driver was the servant of the defendant, which never had hired him.
BRALEY, J.
The defendant is not responsible in damages because it owned the motor truck which through the carelessness of the driver came into collision with the plaintiff's team while both were travellers upon a public way. The plaintiff must go further and offer evidence from which it could be found that the driver was the defendant's servant. Trombley v. Stevens-Duryea Co. 206 Mass. 516. Marsal v. Hickey, 225 Mass. 170.
It is plain from the uncontroverted evidence that while originally the defendant let the truck for hire, which included the services of a driver as in Shepard v. Jacobs, 204 Mass. 110, 112, it was operated at the time of the accident by an employee of the bailee, who is not shown to have had any knowledge of the conversation subsequent to the contract between the manager of his employer and the defendant's manager, on which the plaintiff relies as sufficient to warrant the jury in finding liability. While the jury doubtless could say that upon the answer to the inquiry why a driver had not been sent, "that he had no driver to send; that if I wanted the truck, I would have to put on my driver," the response was "that, if I put on my driver, he would have to be responsible for it," and that without further colloquy the truck was accepted, and used as previously described, the silence of the defendant, even if found to be an implied assent to the terms proposed, was insufficient to make the employee involuntarily the servant of the defendant with whom he never had sustained any contractual relations. Morgan v. Smith, 159 Mass. 570. Samuelian v. American Tool Machine Co. 168 Mass. 12. Driscoll v. Towle, 181 Mass. 416. Clancy's Case, 228 Mass. 316. It follows that, the plaintiff not having been injured by any negligent act of the defendant, the exceptions must be sustained, and judgment entered for it under St. 1909, c. 236, § 1.
So ordered.