Dearborn v. Fuller

• Decision Date: 06 May 1919
• Citation: 107 A. 607
• Parties: DEARBORN v. FULLER.
• Court: New Hampshire Supreme Court

107 A. 607

DEARBORN

v. FULLER.

Supreme Court of New Hampshire. Belknap.

May 6, 1919.

Transferred from Superior Court, Belknap County; Allen, Judge.

Action by Burt S. Dearborn, administrator of William Wallace, deceased, against Alvan T. Fuller. Verdict for plaintiff. Transferred on defendant's exception to the action of the court in denying motions for a nonsuit and a directed verdict. Verdict set aside. Judgment for defendant.

Case for negligently causing the death of the plaintiff's intestate William Wallace. Tried by jury, and verdict for the plaintiff.

The intestate was injured by being thrown from an automobile in which he was riding and which was driven by one Freeman, who was at the time engaged in his employment for the defendant as the general sales agent in this state for the defendant's motor sales agency. The defendant owned the automobile, and there was no evidence that Freeman was not a skillful driver.

The day before the accident Wallace had completed a bargain for a car through Freeman's agency. He and a local agent had signed a contract, which had been sent to Boston to be validated by an executive officer of the defendant's organization. He was to be in Boston the next day, and Freeman suggested that as he was to be there with a car Wallace could ride back with him as far as Manchester. It was arranged that if Wallace decided to do so he would telephone to Freeman at the defendant's Boston office. This was done, the parties met at an agreed place, and the accident occurred while Wallace was being transported under these conditions.

The defendant had a rule that—

"No driver or employe of the company is permitted to take any one in a car of the company other than a customer who is being demonstrated a car, or some one connected with him— meaning the customer."

Wallace did not go to the defendant's place of business, or transact any business with him on the day of the accident.

The defendant's motions for a nonsuit and a directed verdict were denied, subject to exception, by Allen J., who transferred the case from the March term, 1918, of the superior court.

Jewett & Jewett, of Laconia, for plaintiff.

Foster & Lake, of Concord, and Owen & Veazey, of Laconia, for defendant.

PEASLEE, J. If at the time Freeman caused the injury he was not acting within the scope of his employment, the defendant is not liable. Danforth v. Fisher, 75 N. H. 111, 71 Atl. 535, 21 L. R. A. (N. S.) 93, 139 Am. St. Rep. 670. The evidence is conclusive to the effect that Freeman had no authority from the defendant to carry Wallace as a passenger. This excess of his authority continued as long as Freeman pursued the unauthorized course of conduct. He not only exceeded his authority in asking Wallace to ride, but also in receiving him into the car and in thereafter transporting him therein. In all that Freeman did touching the carriage of Wallace he acted outside the authority conferred upon him. From first to last it was his own undertaking and not that of the defendant.

But it is said that, conceding this to be so, Freeman occupied a dual position. Personally, he was the host of Wallace, who rode as his guest, and as agent of the defendant he was engaged in driving the car from...