Avery v. White

• Decision Date: 10 May 1907
• Citation: 66 A. 517,79 Conn. 705
• Parties: AVERY v. WHITE.
• Court: Connecticut Supreme Court

66 A. 517

79 Conn. 705

AVERY

v. WHITE.

Supreme Court of Errors of Connecticut.

May 10, 1907.

Appeal from Superior Court, New London County.

Action by Sherwood G. Avery against Charles E. White, under Gen. St. 1902, § 1097, to recover treble damages for cutting trees on land of plaintiff. Verdict for plaintiff. Defendant appeals. Affirmed.

C. F. Thayer and G. W. Melony, for appellant. W. H. Shields and D. G. Perkins, for appellee.

THAYER, J. The complaint alleges that the defendant by his workmen and servants entered upon the plaintiff's land and did the cutting complained of. The defendant complains of the charge of the court, because it falls to explain to the jury that acts of a servant beyond the scope of his employment are not the acts of the master, and that the master is not responsible for a trespass or wrongful act of his servant unless such act is done in the execution of the master's orders or with his assent or approbation. He also complains that the charge fails to explain the distinction between the relation of master and servant and the relation of employer and contractor. It is true that no instruction was given upon these questions, and the plaintiff claims that there was no occasion for such instruction, because on the trial the defendant admitted that the cutting was done by his servants by his order; that no claim was made that he was not liable for their acts, nor any claim in relation to the master's liability for the acts of his servant beyond the scope of his employment, nor as to the law or legal distinction between the relation of master and servant and that of employer and contractor. It is not clear, from the record sent up, whether the plaintiff's claims are correct or not. But he has filed with this court an application to rectify the appeal, under section 801, Gen. St 1902, which, if allowed, makes it entirely clear that the plaintiff's claim in this respect is correct. The application is informal, in that it is not. strictly speaking, addressed to the court, its different statements of fact are not paragraphed as they should be to facilitate the specific admission or denial of each by the adverse party, and it does not close with a request for the specific changes and additions to the finding which are sought. It is, however, entitled "Application to Rectify Appeal," and the additions to the finding sought for sufficiently appear, and no objection to it on the ground of informality is made. It has annexed to it the affidavit of counsel that all the statements of fact set forth in the application are true; but no answer, supported by like affidavit, has been filed by the defendant, as required by section 14 of the rules of this court. The purpose of the rule is to save the...