Castonguay v. Acme Knitting Mach. & Needle Co.

• Decision Date: 01 March 1927
• Citation: 136 A. 702
• Parties: CASTONGUAY v. ACME KNITTING MACHINE & NEEDLE CO.
• Court: New Hampshire Supreme Court

136 A. 702

CASTONGUAY

v. ACME KNITTING MACHINE & NEEDLE CO.

Supreme Court of New Hampshire. Merrimack.

March 1, 1927.

Transferred from Superior Court, Merrimack County; Branch, Judge.

Action on the case for negligence by Marjorie Castonguay against the Acme Knitting Machine & Needle Company. Verdict for plaintiff. Transferred on defendant's exceptions to denial of motions for a nonsuit and a directed verdict. Exceptions sustained. Judgment for defendant.

Case for negligence. Trial by jury, and verdict for plaintiff. A school principal arranged with the defendant's manager for a group of students to visit the defendant's mill and inspect it in connection with one of the school courses. The plaintiff was one of the group, and, while watching a knitting machine in operation, a needle in it broke and a fragment of the needle flew into her eye. Further facts appear in the opinion. Transferred on the defendant's exceptions to the denial of motions for a nonsuit and a directed verdict.

Murchie & Murchie. Robert C. Murchie, and Alexander Murchie, all of Concord, for plaintiff.

Robert W. Upton, of Concord, and Lucier & Lucier, of Nashua, for defendant.

ALLEN, J. The plaintiff's position that she was an invitee rather than a licensee or trespasser is not to be upheld. Whatever might be the situation if the defendant's manager had been the owner of the property and business, his authority as manager included no right to do things not relating and incidental to the business. The defendant was not bound by acts not within the scope of his real or apparent agency.

As to his actual authority, there is no evidence that he had any beyond what his position as manager implied. As to this, while representing the owner, he did so only in respect to matters concerning the business, and management of the mill conveyed only authority to carry on the business in a usual and ordinary manner. He was not the owner's alter ego. While as manager he was a general agent in the conduct of the business, he was not the owner's agent to use the property or permit its use for purposes outside or foreign to the business. His authority of control and direction, while it gave him the right to devote the property to purposes in promotion of the business carried on, gave him no right to devote it to the uses and purposes of others. And the absence of express instructions implied no discretionary authority on the subject, since the subject was outside the scope of the business of the mill. Authority "to act without restriction or qualification in all matters relating to the business of his principal" (Schwartz v. Company, 82 N. H. 177, 178, 131 A. 352, 353), does not cover matters not relating to the business. So far as appeared, the plaintiff's visit "could have no tendency to forward the business or promote the interests of the defendant." Norris v. Company, 206 Mass. 58, 61, 91 N. E. 886, 887 (31 L. R. A. [N. S.] 623, 19 Ann. Cas. 424).

"The fact that it [the defendant] may be chargeable with knowledge that strangers frequently came upon the premises, and were suffered to remain there without actual objection, is not [by itself] sufficient evidence that the camp boss was authorized by the defendant to charge it with the legal responsibility of a landowner to his guest, by inviting his friends to come to the camp, not for any benefit or advantage to the defendant in its business, but simply for their enjoyment or pleasure." Hobbs v. Company, 74 N. H. 116, 119, 65 A. 382, 383 (124 Am. St. Rep. 944).

"While it could not be found that the men had authority to invite a visitor because of their positions in charge of the work, or because the presence of such invitee would directly promote the defendant's business, it could be found that they had such authority from the fact that the defendant undertook to there maintain for them a place of abode." Hobbs v. Company, 75 N. H. 73. 81, 70 A. 1082, 1087 (18 L. R. A. [N. S.] 939).

The plaintiff's claim that there was evidence of a mutuality of interest between the parties in the manager's testimony that his consent to the visit was given out of interest to maintain friendly relations with the people of Franklin is not supported by the record, which shows that the manager, instead of admitting, denied that such an interest was in his mind at the time. While it is suggested that he made such an admission in a deposition, yet if the deposition can be so construed, it was not positive evidence at the trial, but its effect was merely to destroy his testimony. Lydston v. Company, 75 N. H. 23, 70 A. 385, 21 Ann. Cas. 1236, and cases cited; Hobbs v. Company, 75 N. H. 73, 74, 70 A. 1082, 18 L. R. A. (N. S.) 939; Duval v. Company (N. H.) 136 A. 400. So far as the evidence shows, in his consent to the visit of the students and arrangements therefor, the manager acted solely to assist the cause of public school education.

Respecting the manager's apparent authority—

"When it is said that a principal is bound by an act his agent was not expressly authorized to do. because it was within the apparent scope of his authority, by it is intended that the act is one the principal held the agent out as having authority to do. Atto v. Saunders, 77 N. H. 527. 529, 93 A. 1037. In short, by it is intended that the principal has either so conducted his business as to give third parties the right to believe that the act in question is one he has authorized his agent to do, or that it is one agents in that line of business are accustomed to do." Davison v. Parks, 79 N. H. 262, 263, 108 A. 288, 289.

Under this definition apparent authority may not here be found. There was no evidence of a practice or custom for the manager or for mill agents in general to invite persons to visit the mill for reasons not connected with its business. Still less is there any common knowledge to such effect. Management of the mill therefore gave no ostensible right to make the mill an educational clinic. Charge of the property in connection with the business would not naturally or reasonably lead one to infer that its charge for purposes not so connected had been intrusted to the manager. There was nothing reasonably indicating a charge and control in excess of the limitation of authority implied by the scope of the business, and the apparent scope of the business indicated nothing beyond its actual scope.

It is therefore unnecessary to consider whether there was evidence from which the plaintiff's standing as an invitee might be found had the manager beeen given authority to invite her for the purposes of her visit, or whether it is the law here that an implied "invitation extends only to those who come on business connected with that carried on at the place, and for the transaction of which the place is apparently intended." Plummer v. Dill, 156 Mass. 426, 428, 31 N. E. 128, 129 (32 Am. St. Rep. 463).

Not being an invitee, the plaintiff was either a trespasser or licensee. There is nothing in the record to show that visitors having no business with the mill were permitted entrance. There is no presumption that they were. Nor is there any evidence of custom charging the defendant with notice from which acquiescence might be implied and found. The right of the plaintiff to enter rested wholly on the manager's authority to admit her. As already appears, he was without authority to invite. Lacking authority to invite, he also lacked authority to permit without invitation. It was not within his real or apparent charge of the business to authorize the admission of strangers having no business connected with that of the mill and expose the owner to the liabilities therefrom resulting. It was not necessary or reasonably incidental to the conduct of the business, and there was no evidence from which others might be found to have been given the right so to understand Since the manager had no express, implied, or apparent authority either to invite or permit visitors to enter the mill for purposes solely their own, it follows that the plaintiff was a trespasser.

It then remains to be considered if the defendant was chargeable with notice of her presence, so as to give her the rights of a known trespasser. "* * * The principal is not charged with his agent's knowledge in respect to a particular transaction, unless the latter's acts in respect to it were within the scope of his employment." Warren v. Hayes, 74 N. H. 355, 356, 68 A. 193, 194.

In Dearborn v. Fuller, 79 N. H. 217, 107 A. 607, the owner of an automobile was held not liable for his driver's negligent operation of it to a passenger whom the driver without authority invited to ride. On the claim that the driver's knowledge of the passenger's presence was chargeable to the owner, the court said: "When the agent acts in this dual way knowledge on his part is not chargeable to his principal." The case was followed in Ellsmore v. Director General, 80 N. H. 100, 114 A. 25.

While in both of these cases the agent or servant acted in disobedience of an express rule in receiving the passenger, the absence of such a rule here does not change the situation. Wilkinson v. Company, 79 N. H. 335, 109 A. 45. Authority being lacking, what the manager did was his and not the defendant's affair. The plaintiff was placed by her teacher in his charge in respect to her safety, and not in the defendant's. The pilot who conducted the group through the mill acted for the manager and stood in his place. The defendant...