Chaput v. Lussier

• Decision Date: 13 April 1932
• Citation: 159 A. 851
• Court: Maine Supreme Court
• Parties: CHAPUT v. LUSSIER (two cases).

159 A. 851

CHAPUT

v. LUSSIER (two cases).

Supreme Judicial Court of Maine.

April 13, 1932.

Exceptions from Superior Court, Androscoggin County.

Actions by Marie Chaput, pro ami, and by Anna Chaput against Adelard Lussier, which were heard together. Referees' reports in favor of defendant were accepted, and plaintiffs bring exceptions.

Exceptions sustained.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, FARRINGTON, and THAXTER, JJ.

Clifford & Clifford and Prank T. Powers, all of Lewiston, John Marshall, of Auburn, for plaintiffs.

Berman & Berman, of Lewiston, for defendant.

PATTANGALL, C. J.

On exceptions. Actions for damages alleged to have been suffered by reason of the negligence of the servant of defendant in driving a public taxicab owned by defendant and operated in his business.

The cases were heard together by referees who found for defendant in both. Objection was seasonably made to the acceptance of the referees' reports and written reasons for objection were filed in accordance with rule 21, Revised Rules of Supreme Judicial and Superior Courts, 129 Me. 511. The reports were accepted and exceptions filed and allowed.

The facts are these. At the time plaintiffs sustained the injuries of which they complain, defendant was engaged in carrying on a public taxi business. Plaintiffs were passengers for hire. One Gagne was the regular driver of the particular cab in which they were riding and was engaged to carry plaintiffs, together with their father and one Lussier, from the home of plaintiffs to a town some miles distant therefrom. Although Gagne had received explicit orders from defendant not to permit any one else to drive the car, he surrendered the wheel to Lucien, who appears to have been an experienced driver, and took his place on the rear seat with one of the plaintiffs and her father, the other plaintiff occupying the front seat with Lucien.

After having driven a considerable distance, a collision occurred between the taxi and an approaching automobile under circumstances which the referees found supported plaintiffs' claim of negligence on the part of the driver of the taxi.

The referees also found that plaintiffs received injuries because of the collision, and that they were not guilty of contributory negligence, but, finding that Lucien "was not the agent or servant of defendant," their decision was in defendant's favor. So far as Gagne was concerned, they found that at the time of the accident he was riding on the rear seat "but did not in any way attempt to control the actual operation of the car." They neither considered nor passed upon the vital question of whether or not he was guilty of negligence. If he was, and that negligence was the proximate cause of the accident, there could be no doubt as to defendant's liability.

Exceptions lie to the acceptance of a report of referees when any issue included in the submission is left undecided. Wyman v. Hammond, 55 Me. 537; Jonah v. Clark, 111 Me. 142, 88 A. 395, Ann. Cas. 1916A, 356; Kennebec Housing Co. v. Barton, 122 Me. 374, 120 A. 56; Puller v. Wright, 10 Vt. 512; Pinsker v. Pinsker, 44 App. Div. 501, 60 N. Y. S. 902; Hecker v. Fowler, 2 Wall. (69 U. S.) 123, 17 L. Ed. 759.

In the instant cases, rights of exceptions to the findings of the referees on matters of law were specifically reserved in accordance with rule 42, Rules of Court, supra. This rule is a revival of one long in force in this state, but at one time repealed and recently readopted. The rights of parties under it and the procedure to enforce them are quite fully discussed in Inhabitants of Bucksport v. Buck, 89 Me. 320, 36 A. 456. We are not particularly concerned, however, with these matters in these cases. Irrespective of rule 42, plaintiffs here have brought themselves within the broader rule recognized in Wyman v. Hammond, supra, and ca...