Cain v. Wickens

• Decision Date: 28 June 1923
• Docket Number: No. 1891.,1891.
• Parties: CAIN v. WICKENS.
• Court: New Hampshire Supreme Court

122 A. 800

CAIN

v. WICKENS.

No. 1891.

Supreme Court of New Hampshire. Rockingham.

June 28, 1923.

Transferred from Superior Court, Rockingham County; Allen, Judge.

Case by Patrick Cain against Fred Wickens to recover for damages to plaintiffs automobile. Case transferred from trial term on defendant's exceptions to a charge. Exceptions overruled.

Case to recover for damage to the plaintiff's automobile. Trial by jury. Verdict for the plaintiff. The plaintiff loaned his car to one Cantillon, and it was damaged, while he was using it, by his negligence and that of the defendant. The court, subject to the defendant's exception, charged the Jury in part as follows:

"If the driver of the plaintiff's car was also negligent, that does not relieve the defendant from liability if he also was negligent. But the question of Cantillon's care is to be considered in your ascertainment of the cause of the collision, and, if he is found negligent, the defendant is not liable unless he also is found negligent."

Sewall & Waldron, of Portsmouth, for plaintiff.

McLane & Davis, of Manchester, for defendant.

YOUNG, J. All that it is necessary to say in relation to the defendant's contention that the instructions "on the question of negligence were improper, insufficient, and misleading," is that the only question for this court, which his exception raises, is whether on the facts of this case Cantillon's negligence is to be imputed to the plaintiff. If his other complaints in respect to the charge are well founded, they come to nothing, for they were not called to the court's attention before the cause was submitted to the jury.

The only question, therefore, which will be considered is whether, when property bailed is damaged by the negligence of the bailee and a stranger, the negligence of the bailee is to be imputed to the bailors. There is no case in this jurisdiction in which this precise question has been considered, but there are several in which the question of whether the negligence of a bailee, who is also an employee of the bailors, should be imputed to them have been considered. In these cases it is held that, if the bailee was acting within the scope of his employment when he did the act complained of, his negligence is to be imputed to the bailors, notwithstanding he was not doing what he was employed to do in the way he was expected to do it when the accident happened. Defoe v. Stratton, 80 N. H. 109, 114 Atl. 29; Page v. Hodge, 63 N. H. 610, 4 Atl. 805; 18 R. C. L. 796.

If, however, the bailee was acting wholly outside of the scope of his employment when he did the act in question, his negligence is not imputed to his employers. Danforth...