Dore v. Baboock

• Decision Date: 09 January 1902
• Citation: 74 Conn. 425,50 A. 1016
• Court: Connecticut Supreme Court
• Parties: DORE v. BABOOCK.

50 A. 1016

74 Conn. 425

DORE

v. BABOOCK.

Supreme Court of Errors of Connecticut.

Jan. 9, 1902.

Appeal from superior court, New Haven county; George W. Wheeler, Judge.

Action by Daniel Dore against Frederick W. Babcock to recover for negligently causing the burning of plaintiff's store building and dwelling house and contents. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Charles S. Hamilton and Edward A. Harriman, for appellant.

James H. Webb and Arnon A. Ailing, for appellee.

TORRANCE, C. J. The new trial heretofore granted on the plaintiff's appeal in this cause (72 Conn. 408, 44 Atl. 736) resulted in a verdict and judgment for the plaintiff, and the defendant now appeals for alleged errors of the trial court in its rulings and in its charge to the jury. The evidence produced by both sides on this second trial was substantially the same as that produced by them on the first trial, and the substance of it is so fully stated in the report of this case in 72 Conn. 408, 44 Atl. 736, that it is unnecessary to restate here anything more than the substance of some of the facts found upon the record.

Upon the second trial, as upon the first, the defendant claimed to have proved that upon the day of the fire the place in plaintiff's store where the oil was to be poured by Higgins, the defendant's servant, into the pan connecting with the tank, was so dark that an artificial light was necessary there, while the plaintiff claimed to have proved that no such light was necessary. The defendant also upon this trial, as upon the other, claimed to have proved the following facts, in substance, with reference to the use of the candle which it was claimed caused the fire: That Higgins on the day of the fire asked the plaintiff's servant McEnroe for a light to be used at the pan, to enable Higgins to pour the oil therein properly; that McEnroe furnished Higgins with a candle to be used for that purpose, and a match to light it; and that Higgins placed three bundles of kiln-dried wood on the floor, about three or four feet from the pan, and piled them up, making a base about nine inches high on which he placed the lighted candle, affixing it thereto by grease melted and allowed to harden. One of the important questions—indeed, the pivotal question?in the case below was whether Higgins, in so placing and using the candle in this way, was as to these acts the servant of the defendant, or the servant of the plaintiff; and one of the things of which the defendant now complains is the charge of the court upon this question. In substance, he claims that the charge upon this point was not sufficient for the guidance of the jury in determining this important point in the case. More precisely, the complaint is that the court failed to say to the jury, in any effective way, that if Higgins, in lighting and placing the candle as and where he did, was doing something by the plaintiff's consent which it was the duty of the plaintiff to do, he was, in what he so did, the servant of the plaintiff, and not of the defendant. We think this complaint is well founded. Thedefendant claimed that the evidence tended to show (1) that an artificial light was necessary at the pan; (2) that it was the duty of the plaintiff to furnish such light there; and (3) that when the defendant, through Higgins, asked for such light there, the plaintiff, through McEnroe, as his servant and agent, recognizing his duty to furnish it, began the performance of that duty, and thereby impliedly authorized Higgins to complete it. This claim was fairly supported by the evidence as the defendant claimed it to be. Was McEnroe authorized to act for the plaintiff, and as his servant, for the purpose of furnishing the necessary light? Did the plaintiff recognize his duty to furnish that light? Did McEnroe, in his behalf, begin the performance of that duty by handing a candle to Higgins, for Higgins to use in completing the performance of the plaintiff's duty by using the candle, as the plaintiff's agent, to light the place where the oil was to be poured into the pan? These were material questions of fact for the jury to decide. If they were all answered by the jury in the affirmative, then the law was that Higgins, in lighting and placing the candle, was the servant of the plaintiff, and not of the defendant, and the jury should have been so instructed. The court instructed the jury correctly enough as to the "general rules of law governing the liability of employers for the acts of their servants or agents." They were also distinctly told that if Higgins, in placing the candle as he did, was the agent of the plaintiff, the defendant was not liable; but they were not told that, if the defendant's claims upon the evidence on the points in question were found true, Higgins, in placing the candle, was the agent of the plaintiff. They were, it is true, told that in...