Alderman v. Noble

• Decision Date: 13 November 1936
• Parties: ALDERMAN v. NOBLE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

296 Mass. 30

4 N.E.2d 619

ALDERMAN v. NOBLE.

Supreme Judicial Court of Massachusetts, Hampden.

November 13, 1936

Exceptions from Superior Court, Hampden County; Burns, Judge.

Action of tort by Urael S. Alderman against Carlisle Noble. Verdict of $500 for the plaintiff, and the defendant saves exceptions.

Exceptions overruled.

L. C Henin, of Springfield, for plaintiff.

H. B Putnam, of Westfield, for defendant.

LUMMUS, Justice.

The evidence warranted a finding of the following facts. The defendant and his mother operated a farm. The plaintiff occupied a house of theirs as tenant. By arrangement between the parties, the plaintiff cut wood on the farm on shares stacking what was cut in two equal piles, one for himself and one for the defendant, and both parties then joined in sawing both piles, using a circular saw, owned by the defendant which was operated by gasolene. While they were sawing wood from the defendant's pile, the defendant negligently accelerated the speed of the saw, the plaintiff's hand was pulled into the saw, and his fingers were cut. Without discussing the facts in detail, it is enough to say that the judge was not bound to rule, with the burden of proof on the defendant, that either contributory negligence or assumption of risk (Leary v. William G. Webber Co., 210 Mass. 68, 96 N.E. 136; Manning v. Prouty, 260 Mass. 399, 402, 157 N.E. 364; Engel v. Boston Ice Co., Mass., 4 N.E.2d 455) had been established as matter of law. See G.L.(Ter.Ed.) c. 152, § 67.

The judge instructed the jury, without exception, that ‘ in order to maintain the action * * * the plaintiff must satisfy you by a fair preponderance of the evidence that the relation of master and servant or of employer and employee existed at the time that this accident happened.’ The verdict was for the plaintiff. The only exception of the defendant was to the denial of his motion for a directed verdict in his favor. He contends that there was no evidence that the plaintiff was his servant.

It makes no difference whether the plaintiff was the defendant's servant (McDermott's Case, 283 Mass. 74, 186 N.E. 231) or not. If he was, his right to recover is unquestionable. If not, various views of his relationship to the defendant are conceivable. He might have been conferring a pecuniary benefit upon the defendant in consideration of a similar benefit in return, without becoming technically a servant. If so, he was entitled to ordinary care for his safety. Lyttle v. Monto, 248 Mass. 340, 142 N.E. 795; Foley v. McDonald, 283 Mass. 96, 185 N.E. 926; Nichols v. Rougeau, 284 Mass. 371, 375, 187 N.E. 710; Semons v. Towne, 285 Mass. 96, 188 N.E. 605; Woods v. Woods (Mass.) 3 N.E.(2d) 837; Walker v. Lloyd (Mass.) 4 N.E.(2d) 306. He might be thought a partner, a joint adventurer with the defendant (Ross v. Burrage, 233 Mass. 439, 448, 124 N.E. 267; Edgerly v. Equitable Life Assurance Society, 287 Mass. 238, 243, 191 N.E. 415; Bond v. O'Donnell, 205 Iowa, 902, 218 N.W. 898, 63 A.L.R. 901, and note), or an associate of the defendant in a ‘ joint’ or ‘ common’ enterprise. Adams v. Dunton, 284 Mass. 63, 67, 187 N.E. 90; Note, 95 A.L.R. 857. We need not distinguish these relationships carefully. In each the negligence of one associate is imputed to another, in favor of third persons.

The proposition now advanced is that one engaged in a joint or common enterprise cannot recover for personal injury caused by the negligence of an associate in that enterprise, because the negligence of either is imputable to the other. That has been put forward before. Loftus v. Pelletier, 223 Mass. 63, 65, 111 N.E. 712; Adams v. Dunton, 284 Mass. 63, 67, 187 N.E. 90. But it is a perversion of the idea of imputed negligence. In certain relationships the negligence of one person is imputed to another in favor of third persons. But a wrongdoer cannot by a fiction of law attribute his own wrongdoing to the victim. In the typical instances of imputed negligence, those of master and servant and principal and agent, the negligence of a servant or agent is not imputed to the master or principal so as to prevent recovery against the servant or agent for negligence injuring the person or property of the master or principal. Mechanics' Bank v. Merchants' Bank, 6 Metc. 13; Gould v. Rich, 7 Metc. 538; White v. Phillipston, 10 Metc. 108, 111; Bickford v. Richards, 154 Mass. 163, 27 N.E. 1014,26 Am.St.Rep. 224; Gordon v. Cross & Roberts, Inc., 287 Mass. 362, 191 N.E. 407; Zulkee v. Wing, 20 Wis. 408, 91 Am.Dec. 425, an excellent opinion by Dixon, C. J.; Smith v. Foran, 43 Conn. 244, 21 Am.Rep. 647; Donohue v. Jette, 106 Conn. 231, 137 A. 724; Cain v. American Policyholders' Ins. Co., 120 Conn. 645, 648, 183 A. 403; Grand Trunk Railway v. Latham, 63 Me. 177; Nelson v. Morgan (La.) 2 Mart.(O.S.) 256, 5 Am.Dec. 729; Darling v. Younker, 37 Ohio St. 487, 493,41 Am.Rep. 532; Laverty v. Snethen, 68 N.Y. 522, 524,23 Am.Rep. 184; Weymer v. Belle Plaine Broom Co., 151 Iowa, 541, 132 N.W. 27, Ann.Cas.1913A, 451, and note; Am.Law Inst. Restatement, Agency, § 379. As to the right of one partner or joint adventurer to recover against another at law for negligent injury to individual property, see Haller v. Willamowicz, 23 Ark. 566, and Newby v. Harrell, 99 N.C. 149, 5 S.E. 284,6 Am.St.Rep. 503.

The same rule applies to persons engaged in a joint or common enterprise. The negligence of one is not imputed to his injured associate, so as to prevent the latter from maintaining an action against the former. Many cases could be cited to this effect, but a few will suffice. White v. McVicker, 216 Iowa, 90, 246 N.W. 385; Thompson v. Farrand, 217 Iowa, 160, 251 N.W. 44; Garrotto v. Butera, 123 Neb. 682, 243 N.W. 879; Mencher v. Goldstein, 240 A.D. 290, 269 N.Y.S. 846; Campbell v. Campbell, 104 Vt. 468, 162 A. 379, 85 A.L.R. 626. Compare Roschmann v. Sanborn, 315 Pa. 188, 192, 172 A. 657.

Neither is the plaintiff to be deprived of a present remedy in tort and obliged to await a settlement of the supposed accounts of the simple relationship between the parties. Of course that is so if the plaintiff was a servant or a mere assistant. If there was a joint or common enterprise, that does not necessarily involve any accounts or financial affairs. Adams v. Swift, 172 Mass. 521, 52 N.E. 1068; Hutchings v. Vacca, 224 Mass. 269, 112 N.E. 652. A joint adventure is sometimes so free from complexity that its affairs can be settled in an action at law. Welch v. Miller, 210 Pa. 204, 59 A. 1065; Lockwood v. Edwards, 46 R.I. 267, 126 A. 757; note, 21 A.L.R. 60; 33 C.J. 866. Compare Williams v. Henshaw, 11 Pick. 79,22 Am.Dec. 366; Smith v. Butler, 164 Mass. 37, 41 N.E. 60; McLauthlin v. Smith, 166 Mass. 131, 44 N.E. 125. Even in a typical partnership, although wrongs done by one partner against the property or business of the firm cannot ordinarily be redressed in an action of tort, but must be dealt with in a settlement of the accounts (Capen v. Barrows, 1 Gray, 376, 381, 382; Ryder v. Wilcox, 103 Mass. 24; Couilliard v. Eaton, 139 Mass. 105, 108, 109, 28 N.E. 579), transactions between partners outside partnership affairs may be dealt with in actions of contract or of tort. Chamberlain v. Walker, 10 Allen, 429; Wetherbee v. Potter, 99 Mass. 354, 365; Martin v. McBryde, 182 N.C. 175, 108 S.E. 739, 21 A.L.R. 12, and note. The labor of the body of a partner may belong to the partnership, but his body is his own. An injury to it has no place in the partnership accounts. See Haller v....