Fiske v. Enders

• Decision Date: 18 December 1900
• Citation: 73 Conn. 338,47 A. 681
• Court: Connecticut Supreme Court
• Parties: FISKE v. ENDERS.

47 A. 681

73 Conn. 338

FISKE

v. ENDERS.

Supreme Court of Errors of Connecticut.

Dec. 18, 1900.

Appeal from superior court, Hartford county; Prentice, Judge.

Action by Carrie Fiske against Harriet A. Enders for personal injuries. Heard in damages on a default. Plaintiff had judgment for nominal damages, and appeals. Affirmed.

Sidney E. Clarke, for appellant.

Joseph L. Barbour, for appellee.

TORRANCE, J. The complaint in this case alleged, in substance, that on the 10th day of June, 1899, through the negligence of one McNally, the defendant's servant, "acting in the line of his services," a pair of horses belonging to the defendant, then in the care and custody of McNally, ran against the plaintiff and injured her. The defendant suffered a default, and the case was heard in damages. Upon that hearing the main question in dispute was whether, at the time of the injury aforesaid, McNally was so using said horses in the business or service of the defendant as to make her responsible for the results of his negligence. Upon certain subordinate facts, set forth in the record, the trial court held that he was not then so engaged in the service or business of the defendant as to make her responsible for his negligence; and the plaintiff says the court erred in so holding. The substance of the subordinate facts found, bearing upon this part of the case, may be stated thus: On the day of the injury, and for some years before, McNally was and had been in the employment of the defendant as her coachman. He had the sole care of her horses, was her driver when she used them, and exercised them when they required exercise. In the matter of exercising them, the defendant, when in town, gave specific directions in each instance. In her absence McNally had general instructions to exercise them only when necessary, and then to drive them only in the country. He had no authority to use the horses for his own use or pleasure, or except as above stated, although at times he had used them otherwise without the defendant's knowledge. On the morning of the day of the injury, McNally drove the defendant to the railroad station, where sue took a train for New York. About 11 o'clock in the forenoon of the same day, in the absence of the defendant and without her knowledge or consent, McNally took the horses from the defendant's stable, harnessed them to her carriage, and started towards the city of Hartford for a drive. His purpose in so doing was not to exercise the horses, for they needed none then, nor to use them upon any business or service of the defendant, but solely for his own pleasure and amusement. From the time he left the defendant's stable...