Copp v. Paradis

• Decision Date: 20 November 1931
• Citation: 157 A. 228
• Parties: COPP v. PARADIS.
• Court: Maine Supreme Court

157 A. 228

COPP

v. PARADIS.

Supreme Judicial Court of Maine.

Nov. 20, 1931.

Exceptions overruled.

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

Bernard Gibbs, of Madison, for plaintiff.

Butler & Butler, of Skowhegan, for defendant.

STURGIS, J.

Action on the case to recover property damages resulting from the negligent operation of the defendant's truck by a person invited to ride and permitted to drive by the defendant's servant. At the close of the plaintiff's case, a nonsuit was entered and exceptions reserved.

The evidence warrants the finding that, on September 5, 1930, the defendant's truck driver, Arthur Tancread, having been ordered to haul a load of supplies from Lewiston to Dead River, invited a friend, Leo Carpenter, to accompany him. Tancread drove until they stopped for gas on the return trip, when he permitted Carpenter to take the wheel, and the latter was driving when the truck collided with the plaintiff's car. The defendant had given Tancread no express authority to invite Carpenter to ride with him or to drive, and had no knowledge of his presence in the truck until he met it on its way to Dead River with the men in it. Tancread was then driving, and, so far as the record shows, the defendant passed without speaking. When the collision occurred, the plaintiff himself was in the exercise of due care but the substitute operator was negligent.

The relation of master and servant arises out of contract, and the assent of both parties is essential. Every person has a legal right to work for whom he pleases. The employer has the right to select his employees, and his right of selection lies at the foundation of his responsibility for the acts of his employer. The relation of master and servant cannot be imposed upon a person without his consent. Eaton v. European & North American Railway Co., 59 Me. 520, 8 Am. Rep. 430; Butler v. Mechanics' Iron Foundry Co., 259 Mass. 500, 156 N. E. 720, 54 A. L. R. 849; Haluptzok v. Great Northern Railway Co., 55 Minn. 446, 57 N. W. 144, 26 L. R. A. 739; Kirk v. Showell, F. & Co., Inc., 276 Pa. 587, 120 A. 670.

A master is liable to third persons for damages resulting from his servant's negligence while acting in the course of hjs employment, or as it is sometimes expressed, within the scope of his authority, but the relation of master and servant at the time of and in respect to the acts complained of must be shown. Karahleos v. Dillingham, 119 Me. 165, 109 A. 815; Maddox v. Brown, 71 Me. 432, 36 Am. Rep. 336. This relation may grow out of a servant's invitation or permission to another to assist him in the work with which he is intrusted, if the servant be clothed with authority therefor, either express or implied. In such a case, the servant is held to have acted within the scope of his employment, and the assistant, for the time being, to be the master's servant, for whose negligent acts he is liable. Such authority to employ an assistant, if not express, may be implied from the nature of the work to be performed or when an emergency arises requiring assistance or from the general course of conduct of the business of the master by the servant for so long a time that knowledge or consent on the part of the master may be inferred. 18 R. C. L. 785; Butler v. Mechanics' Iron Foundry Co., supra; Hollidge v. Duncan, 199 Mass. 121, 85 N. E. 186, 17 L. R. A. (N. S.) 982; Haluptzok v. Great Northern Railway Co., supra; Kirk v. Showed, F. & Co., Inc., supra.

The converse of the rule just stated is equally true. Where a servant employs another to perform or assist him in the performance of his work, without express or implied authority from or a subsequent ratification by his employer, the relation of master and servant between the employer and the assistant does not exist, and the liability of the employer cannot be predicated on that relation. Emison v. Wylam Ice Cream Co., 215 Ala. 504, Ill So. 216; Thyssen v. Davenport Ice & Cold Storage Co., 134 Iowa, 749, 112 N. W. 177, 178, 13 L. R. A. (N. S.) 572; Haluptzok v. Great Northern Railway Co., supra; Board of Trade Bldg. Corp. v. Cralle, 109 Va 246, 63 S. E. 995, L. R. A. (N. S.) 297, 132 Am. St. Rep. 917; 39 Corpus Juris, 1272.

An examination of the decided cases, however, discloses a general acceptance of the view that, while the relation of master and servant docs not exist between the employer and an assistant engaged by his servant, without previous authority or subsequent ratification, the employer is not necessarily absolved from liability for the results of the assistant's negligence. The courts accepting this doctrine are not in accord as to the circumstances which will impose liability or the reasons which underlie their conclusions.

The liability of the master is affirmed, in some cases where this question arises, on the ground of "constructive identity," as it is termed, and it is held that, where a servant to whom is intrusted the operation of his master's automobile, without authority or ratification, permits another in his presence to drive it in furtherance of the master's business, the master is liable for the results of the driver's negligence on the theory that the driver is an instrument in the hands of the servant. Emison v. Wylam Ice Cream Co., supra; Gibbons v. Naritoka, 102 Cal. App. 669, 283 P. 845; City of Indianapolis v. Lee, 76 Ind. App. 506, 132 N. E. 605; Thixton v. Palmer, 210 Ky. 838, 276 S. W. 971, 44 A. L. R. 1379; Hendler Creamery Co. v. Miller, 153 Md. 264, 138 A. 1; Geiss v. Twin City Taxicab Co., 120 Minn. 368, 139 N. W. 611, 45 L. R. A. (N. S.) 382; Slothower v. Clark, 191 Mo. App. 105, 179 S. W. 55; Thomas v. Lockwood Oil Co., 174 Wis. 486, 182 N. W. 841. These cases seem to hold that the negligence of the assistant in the presence of the servant imposes liability on the master without regard to whether the negligence of the servant was also a proximate cause. An extended discussion of this broad theory of constructive identity and the supporting cases appears in the annotation appended to the report of Thixton v. Palmer, supra, in 44 A. L. R. 1382.

In Grant v. Knepper, 245 N. Y. 158, 156 N. E. 650, 651, 54 A. L. R. 845, the rule just stated is somewhat qualified, and properly so, we think. Although the decision is finally based on Highway Law, § 282-e, the reasons and conclusions of that court, in its discussion of the common-law rule, are most instructive. It is there said that, while the unauthorized selection of any substitute by an employee, intrusted with the operation of his employer's automobile, is a wrong to the employer, even so, the employer is not, at common law, relieved of liability to the public for negligence assignable to the employee, who still remains in the car with general power and authority of supervision and control. The employee may be found negligent in placing at the wheel a substitute without skill or experience in the management of cars, or in failing to properly supervise the operation thereafter and intervene to avert the loss when intervention would avail. However, "it is not negligence toward the public if the substitute is competent, perhaps more competent than the servant, and there is no failure thereafter of fitting supervision." The employee cannot be deemed negligent nor liability attach to the employer if a competent substitute is "inattentive or remiss at a time when intervention by the servant would have been of no avail. The act of negligence may be 'so sudden or unexperted' * * * that there is no reason to foresee it nor opportunity to avoid it." Judge Cardozo, in stating the opinion of the court, says: "The basis of liability is always the negligence of the servant. If such negligence exists, and is found to be an effective cause, it does not lose its significance as a basis of liability because it may be found to have combined with the negligence of the substitute." In holding that the defendant would be liable at common law, that judgment of the court is based "upon the ground that the negligence of the servant, though it fused with the negligence of the substitute, may none the less be found to have been the cause of the collision."

In Thyssen v. Davenport Ice & Cold Storage Co., supra, that court, referring to the authorities supporting the broader rule of liability already noted, says:

"But, generally speaking, we think the rule of these authorities is not grounded upon the thought that one who assists a servant becomes thereby a servant of such servant's master, except it be in these cases where we may find express or implied authority in the servant to employ or permit the assistance so rendered. In the absence of such authority, the one safe and logical ground upon which to rest the liability of a master for the negligence of a volunteer assistant of his servant is the negligence of the servant in inviting or permitting a stranger to perform or assist in the performance of the work which was intrusted to his own...