Agency. Municipal Corporations, Fire department. Public Officer.
Where the chief of the fire department of a city was being carried to a fire in a motor car operated by a member of the fire department, who, while not acting under the personal direction or orders of his chief, lost control of the car through his negligence in driving it at an excessive rate of speed, and the car, crossing the sidewalk of a public street, struck and injured a traveller thereon, the traveller cannot recover damages for his injuries from the chief of the fire department, the member of the fire department whose negligence caused the injury not being an employee or agent of such chief.
BRALEY, J.
The plaintiff having obtained a verdict against the defendant Butler, the only question is, whether the verdict for the defendant Rich was ordered rightly. The defendants, being members of the fire department of the city of Somerville and in the discharge of their respective duties at the time of the accident, were public officers, and, not being servants of the municipality, they were not fellow servants.
A public officer undoubtedly is liable for personal acts of misfeasance. But, even if Rich was the chief of the department in which Butler was a subordinate and both were riding to the fire in an automobile driven by Butler, there is no evidence which would have warranted the jury in finding that Butler when he lost control of the car through excessive speed was acting under the personal direction or orders of his chief. It follows that Butler, through whose negligence alone the plaintiff was injured, was not an employee or agent of Rich, and the doctrine of respondeat superior is inapplicable. Moynihan v. Todd, 188 Mass. 301, 305, 307. Farrigan v. Pevear, 193 Mass. 147, 151. Barry v. Smith, 191 Mass. 78, 91. By the terms of the report judgment for the defendant Rich is to be entered on the verdict.
So ordered.