Danforth v. Fisher

CourtSupreme Court of New Hampshire
Writing for the CourtYOUNG, J.
Citation71 A. 535,75 N.H. 111
PartiesDANFORTH v. FISHER.
Decision Date04 November 1908
71 A. 535
75 N.H. 111

DANFORTH
v.
FISHER.

Supreme Court of New Hampshire. Hillsborough.

Nov. 4, 1908.


71 A. 536

Exceptions from Superior Court, Hillsborough County; Chamberlin, Judge.

Action by Clarence Danforth against Fred W. Fisher for personal injuries received by being thrown from his wagon in the running away of his team, which was run into by defendant's automobile. A nonsuit was ordered and plaintiff excepts. Exception overruled.

Osgood & Osgood, for plaintiff.

Branch & Branch, for defendant.

YOUNG, J. 1. However it may be in other jurisdictions, in this state the test to determine whether a master is liable to a stranger for the consequences of his servant's misconduct is to inquire whether the latter was doing what he was employed to do at the time he caused the injury complained of. If he was, the fact that he was not doing it in the way expected is immaterial. Rowell v. Railroad, 68 N. H. 358, 44 Atl. 488. But, if at the time he did the act which caused the injury he was not acting within the scope of his employment, the master is not liable. Cordner v. Railroad, 72 N. H. 413, 57 Atl. 534; Turley v. Railroad, 70 N. H. 348, 47 Atl. 261; Searle v. Parke, 68 N. H. 311, 34 Atl. 744; Page v. Hodge, 63 N. H. 610, 4 Atl. 805; Andrews v. Green, 62 N. H. 436; Grimes v. Keene, 52 N. H. 330, 335; Wilson v. Peverly, 2 N. H. 548. At 5 o'clock on the day of the accident McCauley, who was employed by the defendant as a chauffeur, took the automobile from the place where it was kept, drove to the defendant's store, and awaited orders. He was told to get his supper and to be at the New City Hotel with the automobile at a quarter before 7 o'clock. After he had eaten supper, instead of taking the car to the hotel according to the defendant's order, he drove to West Manchester, a mile or two distant from his boarding place, and in an opposite direction from the hotel, for the purpose of calling upon a friend. At the time of the accident he had finished his call, and was on his way to the hotel. Although the evidence shows that McCauley was the defendant's servant, and that he drove the automobile against the plaintiff's horse and caused the animal to run away, it also shows that be took the automobile without the defendant's permission and went with it on an errand of his own; that he was acting for himself, and not for the defendant, at that time. As it cannot be found from the evidence that McCauley was doing what he was employed to do at the time the plaintiff was injured, there was no error in the order of nonsuit.

2. The plaintiff contends that the law of this state on the subject is not in harmony with the view which obtains in most common-law jurisdictions. That his contention is not well founded will appear from an examination of the authorities. Perlstein v. Company, 177 Mass. 530, 59 N. E. 194, 52 L. R. A. 959; McCarthy...

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76 practice notes
  • Southern Bell Telephone & Telegraph Co. v. Quick, 30276
    • United States
    • Mississippi Supreme Court
    • 12 Junio 1933
    ...636; Hartnett v. Gryzmish, 218 Mass. 258, 105 N.E. 988; Miller v. National Automobile Sales Co., 117 Ill.App. 367; Danforth v. Fisher, 75 N.H. 111; Reilly v. Connable, 214 N.Y. 586; Bursch v. Greenough Bros. Co., 79 Wash. 109; Glassman v. Harry, 182 Mo.App. 304; Bloom v. Krueger (Wis.), 195......
  • Kohlman v. Hyland, No. 4992.
    • United States
    • United States State Supreme Court of North Dakota
    • 16 Octubre 1926
    ...been held liable, but the great current of authority, in this country and in England, is against those isolated cases. Danforth v. Fisher, 75 N. H. 111, 71 A. 535, 21 L. R. A. (N. S.) 93, 139 Am. St. Rep. 670;Colwell v. Ætna, etc., Co., 33 R. I. 531, 82 A. 388;Reynolds v. Buck, 127 Iowa, 60......
  • Aversa v. U.S., No. 95-2216
    • United States
    • U.S. Court of Appeals — First Circuit
    • 8 Mayo 1996
    ...he directs or will refrain from acts which it is natural to expect that servants may do." Id., § 230 cmt. b. See also Danforth v. Fisher, 75 N.H. 111, 111-12, 71 A. 535 (1908) (if employee was serving some purpose of his employer, it is immaterial that he did it in a way that was We also th......
  • Boes v. Howell, No. 2123.
    • United States
    • New Mexico Supreme Court of New Mexico
    • 28 Mayo 1918
    ...A. (N. S.) 598; Daily v. Maxwell, 152 Mo. App. 415, 133 S. W. 355; Hall v. Compton, 130 Mo. App. 675, 108 S. W. 1122; Danforth v. Fisher, 75 N. H. 111, 71 Atl. 535, 21 L. R. A. (N. S.) 93, 139 Am. St. Rep. 670; Vincent v. Crandall, 131 App. Div. 200, 115 N. Y. Supp. 600; Knight v. Lanier, 6......
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76 cases
  • Southern Bell Telephone & Telegraph Co. v. Quick, 30276
    • United States
    • Mississippi Supreme Court
    • 12 Junio 1933
    ...636; Hartnett v. Gryzmish, 218 Mass. 258, 105 N.E. 988; Miller v. National Automobile Sales Co., 117 Ill.App. 367; Danforth v. Fisher, 75 N.H. 111; Reilly v. Connable, 214 N.Y. 586; Bursch v. Greenough Bros. Co., 79 Wash. 109; Glassman v. Harry, 182 Mo.App. 304; Bloom v. Krueger (Wis.), 195......
  • Kohlman v. Hyland, No. 4992.
    • United States
    • United States State Supreme Court of North Dakota
    • 16 Octubre 1926
    ...been held liable, but the great current of authority, in this country and in England, is against those isolated cases. Danforth v. Fisher, 75 N. H. 111, 71 A. 535, 21 L. R. A. (N. S.) 93, 139 Am. St. Rep. 670;Colwell v. Ætna, etc., Co., 33 R. I. 531, 82 A. 388;Reynolds v. Buck, 127 Iowa, 60......
  • Aversa v. U.S., No. 95-2216
    • United States
    • U.S. Court of Appeals — First Circuit
    • 8 Mayo 1996
    ...he directs or will refrain from acts which it is natural to expect that servants may do." Id., § 230 cmt. b. See also Danforth v. Fisher, 75 N.H. 111, 111-12, 71 A. 535 (1908) (if employee was serving some purpose of his employer, it is immaterial that he did it in a way that was We also th......
  • Boes v. Howell, No. 2123.
    • United States
    • New Mexico Supreme Court of New Mexico
    • 28 Mayo 1918
    ...A. (N. S.) 598; Daily v. Maxwell, 152 Mo. App. 415, 133 S. W. 355; Hall v. Compton, 130 Mo. App. 675, 108 S. W. 1122; Danforth v. Fisher, 75 N. H. 111, 71 Atl. 535, 21 L. R. A. (N. S.) 93, 139 Am. St. Rep. 670; Vincent v. Crandall, 131 App. Div. 200, 115 N. Y. Supp. 600; Knight v. Lanier, 6......
  • Request a trial to view additional results

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