Evers v. Krouse

• Citation: 58 A. 181,70 N.J.L. 653
• Parties: EVERS v. KROUSE.
• Decision Date: 22 June 1904
• Court: United States State Supreme Court (New Jersey)

58 A. 181

70 N.J.L. 653

EVERS

v. KROUSE.

Court of Errors and Appeals of New Jersey.

June 22, 1904.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Joseph H. Evers against William Krouse. Judgment for plaintiff. Defendant brings error. Reversed.

Cowles & Carey, for plaintiff in error.

Addison Ely, for defendant in error.

GUMMERE, C. J. The plaintiff in error (the defendant below) resides at No. —— Park Place, in the city of Passaic. On the 24th of July, 1901, his minor son was directed by Mrs. Krouse, the wife of the defendant, to sprinkle the lawn in front of the house with water from the garden hose. While he was engaged in his work, a Mrs. Glazier, who had borrowed from Mr. Evers, the plaintiff below, his horse and wagon, drove down Park Place to her own home, which was nearly opposite the Krouse residence, tied the horse to a hitching post along the curb, and left it standing there while she went into her house. During her absence young Krouse turned the hose upon the horse, frightening him so that he broke loose and ran away. Before being caught, he had so injured himself that it was found necessary to destroy him. The wagon was practically demolished. This suit was brought to recover the value of the horse and wagon, and resulted in a verdict and judgment for the plaintiff.

The only error assigned which requires consideration is directed at the charge of the judge to the jury in dealing with the question of the liability of the defendant. The instruction complained of was as follows: "The boy was engaged in sprinkling the lawn. He was accustomed to do it. It was his father's lawn. Was he, then, in his father's service while he was doing that? Was that his father's business? If he was, then, for the misconduct of the boy in the use of these things which he was using about his father's business, the father would be responsible, just as if the father himself had done it. So, if you find that the boy was in his father's service, and, through neglect, through lack of ordinary care, or from a mischievous disposition, threw this water upon or over the horse in such a way as was likely to frighten the horse, then both father and son would be responsible." It is contended that it was erroneous to instruct the jury that the father would be liable to the plaintiff if they found that the boy, "through a mischievous disposition, threw this water upon or over the horse."

The general rule as to the question of the master's liability for the wrongful acts of his servant is thus stated by Mr. Justice Fort, speaking for this court, in the case of Holler v. Ross, 68 N. J. Law, 324, 53 Atl. 472, 59 L. R. A. 943: "The servant cannot bind the master to respond in damages to the plaintiff unless it be shown that the act which the servant did, which caused the injury, was an act which was expressly or by necessary implication within the line of his duty under his employment. For a willful act done by a servant, not within the scope of his employment, no liability attaches to the master." A reference to the text-books which deal with this subject shows that the rule laid down in Holler v. Ross has been generally accepted in other jurisdictions. Notwithstanding, there has been much contrariety of result reached in the application of the rule; and this, it would seem, is due to the assumption in some jurisdictions that the act done by a servant while engaged in the master's work is necessarily an act done within the scope of the former's employment. But this is conspicuously a non sequitur. An act done by the servant while engaged in the work of his master may be...