Danforth v. Fisher

Decision Date04 November 1908
Citation71 A. 535,75 N.H. 111
CourtNew Hampshire Supreme Court

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 v. Timmins, 178 Mass. 378, 59 N. E. 1038, 86 Am. St. Rep. 490; Stone v. Hills, 45 Conn. 44, 29 Am. Rep. 635; Fiske v. Enders, 73 Conn. 338, 47 Atl. 681; Doran v. Thomsen, 74 N. J. Law, 445, 66 Atl. 897; Quigley v. Thompson, 211 Pa. 107, 60 Atl. 506; Lotz v. Hanlon, 217 Pa. 339, 66 Atl. 525, 10 L. R. A. (N. S.) 202, 118 Am. St. Rep. 922; Thorp v. Minor, 109 N. C. 152, 13 S. E. 702; Lewis v. Amorous, 3 Ga. App. 50, 59 S. E. 338; Reaume v. Newcomb, 124 Mich. 137, 82 N. W. 806; Reynolds v. Buck, 127 Iowa, 601, 103 N. W. 946; Slater v. Company, 97 Minn. 305, 107 N. W. 133; Evans v. Company, 121 Mo. App. 266, 101 S. W. 1132; Jones v. Hoge, 47 Wash. 663, 92 Pac. 433, 14 L. R. A. (N. S.) 216; Patterson v. Kates (C. C.) 152 Fed. 481; 26 Cyc. 1538; 20 Am. & Eng. Enc. Law, 163 et seq.; 34 Cent. Dig. tit. Master & Servant, §§ 1219, 1220.

3. The defendant is not liable merely because he was the owner of the automobile by which the plaintiff was injured. If the Legislature can enact that an automobile or its owner shall be liable for any injury the driver may do to others whenever the latter would be, it has not seen fit to do so. Nor is there any force in the plaintiff's contention that the owner of an automobile is liable to strangers in the same way and to the same extent he would be if it were a wild animal. If it were the law of this state that one who has a dangerous element or a wild animal on his premises is liable for all the damage it does after escaping from his control, that rule would have no application to the facts here presented. In this case the automobile did not escape from...

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