Defoe v. Stratton

• Citation: 114 A. 29
• Decision Date: 05 April 1921
• Docket Number: No. 1722.,1722.
• Parties: DEFOE v. STRATTON.
• Court: New Hampshire Supreme Court

114 A. 29

DEFOE

v. STRATTON.

No. 1722.

Supreme Court of New Hampshire. Cheshire.

April 5, 1921.

Transferred from Superior Court, Cheshire County; Sawyer, Judge.

Case by Louis Defoe against Fred A. Stratton. Transferred from the trial term on plaintiff's exceptions to the court's instructions to the jury. Exceptions sustained.

Case to recover for personal injuries received in a collision between a cart on which the plaintiff was riding and an automobile of the defendant, driven by the defendant's servant, Joseph Jalbert, on a public highway in Jaffrey. Trial by jury and verdict for the defendant.

The plaintiff's evidence tended to prove that the defendant runs a livery stable and transports passengers both by team and automobile. Jalbert was experienced in driving Ford cars, of which the defendant had two, and had been hired by the defendant to work in and around the stable and to drive the Ford cars. The defendant also had a Cadillac, which was used to transport passengers, but this car was driven only by the defendant's foreman, Leon W. Priest. The defendant and his foreman had given Jalbert express directions never to touch the Cadillac. Jalbert slept in the defendant's stable, and it was a part of his duty to take passengers to the early morning trains. Orders were left at the office for the transportation of passengers to the early morning train, and it was Jalbert's duty to scrutinize the records and see that the passengers were carried to the railroad station. Prior to the collision he had always done this either by team or with a Ford.

On the evening prior to the collision Jalbert had made use of one of the defendant's Ford cars to transport passengers, and the supply of gasoline had given out, so that Jalbert had to abandon the car about 40 rods from the defendant's stable. The other Ford car was in the garage at Peterboro, and the Cadillac was the only car at the defendant's stable. The defendant always kept an ample supply of gasoline at the stable. On the morning of the accident Jalbert, without the knowledge of the defendant, took the Cadillac car to carry two passengers to an early train, and while he was so employed the accident occurred.

Subject to exception, the jury were instructed that there could be no recovery unless they found that the defendant ratified Jalbert's act. Upon inquiry by the court, the foreman stated that the verdict was based upon lack of authority.

Joseph Madden, of Keene, and Owen A. Hoban, of Gardner, Mass., for plaintiff.

Roy M. Pickard and Orville E. Cain, both of Keene, for defendant.

PEASLEE, J. "In this state the test to determine whether the 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." Danforth v. Fisher, 75 N. H. 111, 71 Atl. 5:15, 21 L. R. A. (N. S.) 93, 139 Am. St. Rep. 670.

A master is liable for acts done by his servants in the prosecution of the work they are employed to do, even though the particular act is in violation of orders given by the master. Richard...