13.01 [1996 Revision] Definitions-Agency-General Comment

Instruction No 1 13.01 [1996 Revision] Definitions--Agency--General Comment As the pattern instructions submit only ultimate issues, a question of respondeat superior liability might be submitted simply "The driver Jones was operating the (defendant's) motor vehicle within the scope and course of his agency for (defendant)." But these words alone are not apt to mean much to lay jurors, so some clarification is needed. The definitions following are intended to supply this clarification. Agency questions arise in a variety of cases. Typical are: 1. Tort actions by third persons against an alleged principal who raises the defense that the tort-feasor was an independent contractor. 2. Tort actions by third persons against master who raises the defense that the servant was not engaged in master's business at time of tort. These include route deviations, dual purpose trips and independent frolics of the servant. 3. Tort actions by third persons against the master for battery by a servant where the master raises the defense that the servant acted beyond the scope of his authority. A universally applicable definition of scope of agency is not practicable. For this reason the Committee has prepared definitions to fit the most common cases. Other definitions may be needed for other problems, but these patterns should serve as a guide in those areas not specifically covered. The purpose of these definitions is to call to the jury's attention the fact issues which determine liability in a particular case. The difference between an agent and a servant is sometimes misunderstood and this causes confusion when instructing. The Restatement (Second) of Agency § 200, Comment e (1957), says: It is important to distinguish between a servant and an agent who is not a servant, since ordinarily a principal is not liable for the incidental physical acts of negligence in the performance of duties committed by an agent who is not a servant. See § 250. One who is employed to make contracts may, however, be a servant. Thus, a shop girl is, and a traveling salesman may be, a servant and cause the employer to be liable for negligent injuries to a customer or for negligent driving while traveling to visit prospective customers. The important distinction is between service in which the actor's physical activities and his time are surrendered to the control of the master, and service under an agreement to accomplish results or to use care and skill in accomplishing results. Those rendering service but retaining control over the manner of doing it are not servants. They may be agents, agreeing to use care and skill to accomplish a result and subject to the fiduciary duties of loyalty and obedience to the wishes of the principal; or they may be persons employed to accomplish or to use care to accomplish physical results, without fiduciary obligations, as where a contractor is paid to build a house. An agent who is not subject to control as to the manner in which he performs the acts that constitute the execution of his agency is in a similar relation to the principal as to such conduct as one who agrees only to accomplish mere physical results. For the purpose of determining liability, they are both "independent contractors" and do not cause the person for whom the enterprise is undertaken to be responsible, under the rule stated in Section 219. See MAI 37.05(1) and (2) for submission of vicarious liability issues in comparative fault cases.