Skerry v. Rich , 228 Mass. 462 ( 1917 )

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.