Hunter v. R. G. Watkins & Son, Inc.
| Decision Date | 30 April 1970 |
| Docket Number | No. 5968,5968 |
| Citation | 265 A.2d 15,110 N.H. 243 |
| Parties | Margaret K. HUNTER v. R. G. WATKINS & SON, INC. Edgar H. HUNTER and Margaret K. Hunter v. R. G. WATKINS & SON, INC. Hartwell B. ABBOTT, Ex'r Estate of Chester D. Abbott v. R. G. WATKINS & SON, INC. Margaret G. HUNTER, p.p.a. Edgar H. Hunter v. R. G. WATKINS & SON, INC. Edgar H. HUNTER v. R. G. WATKINS & SON, INC. Hartwell B. ABBOTT, Ex'r Estate of Grace B. Abbott v. R. G. WATKINS & SON, INC. |
| Court | New Hampshire Supreme Court |
Wadleigh, Starr, Peters, Dunn & Kohls, Manchester, and Richard M. Sullivan, Andover, Mass. (Theodore Wadleigh, Manchester, orally), for plaintiffs.
Sulloway, Hollis, Godfrey & Soden and Martin L. Gross, Concord, for defendant.
These are actions for wrongful death, personal injuries and property damage brought as a result of an accident on Route 4A in Enfield, New Hampshire, on August 6, 1965, involving motor vehicles operated by Edgar H. Hunter, Ralph F. Davis, Jr., and Chester D. Abbott.
Ralph F. Davis, Jr. was an employee of R. G. Watkins & Son, Inc. driving his own automobile at the time of the accident. All parties have agreed that it is desirable to have certain legal issues relating to the chargeability of R. G. Watkins & Son, Inc. for the acts of Ralph F. Davis, Jr., determined in advance of trial. These issues were reserved and transfered by Keller, J. without ruling, on an agreed statement of facts.
On August 6, 1965 Ralph F. Davis, Jr. was an employee of R. G. Watkins & Son, Inc. operating an L.V. truck on a road construction project in Lyme, New Hampshire. The truck operated by Davis broke down and a replacement part needed to repair it was located in Lawrence, Massachusetts. Davis was instructed to pick up the part and bring it back to the job site the next morning. He left about noon in his own car, stopping in Lebanon, New Hampshire at his apartment on the way down and in Salem, New Hampshire on the way back for personal errands.
The accident happened about 5:00 P.M. in Enfield, New Hampshire when Davis was on his way back to his apartment in Lebanon. His normal work day was from 7:30 A.M. until 5:00 P.M. and he was kept on the payroll until 5:00 P.M. on August 6, 1965 to compensate him for his time and gasoline in getting the part. It is agreed for the purpose of this transfer only that he was acting within the scope of his employment at the time of the accident. The defendant reserves the right to contest this issue at trial.
The questions presented to these agreed facts are:
1. Is R. G. Watkins & Son, Inc. liable for the negligence of its employee, Davis, in the operation of a motor vehicle owned by Davis and operated while on company business within the scope of his employment?
2. If it is necessary to show control or right to control by R. G. Watkins & Son, Inc. what constitutes 'control' or 'right to control' within the meaning of New Hampshire decision on this general subject?
Counsel for both the plaintiffs and the defendant expect us to reexamine the rule of McCarthy v. Souther, 83 N.H. 29, 137 A. 445 in answering the transferred questions. McCarthy v. Souther, ibid, and its descendant Hutchins v. John Hancock Mut. Life Insurance Co., 89 N.H. 79, 192 A. 498 both involved salesmen operating their own cars on business of their employers. Recovery against the employers was denied on the ground that there was no evidence from which it could be found the employers had any control over the employees in the 'management and operation of the latter's automobile.' McCarthy v. Souther, supra, 83 N.H. 37, 137 A. 450. In following this rule it is apparent that we belong to a dwindling minority. Konick v. Berke, Moore Company, 245 N.E.2d 750 (Mass. 1969), overrules Massachusetts' previous acceptance of the rule and its citations indicate our lonely situation. See also, cases cited in Annot. 53 A.L.R.2d 631. This court has intimated in Ross v. Robert's Express Co., 100 N.H. 98, 102, 120 A.2d 335 and Carr v. Merrimack Farmers Exchange, 101 N.H. 84, 133 A.2d 497 an intention to reexamine our rule when the occasion presented itself and accordingly we do so here.
The vicarious liability of a master for the wrongs of a servant acting on the master's business has been firmly established in our law from earliest times. See Prosser, Torts, 471 (3d ed. 1964).
The simple statement of the rule of respondeat superior, unchanged over the years, has not resulted in simple application. When the first confrontation arose and the defendant relied upon the liability of an independant intervening contractor our court held that the defendant was liable without any mention of the question of control. Stone v. Cheshire Railroad Corporation, 19 N.H. 427. The holding was questioned in Wright v. Holbrook, 52 N.H. 120 and Carter v. Berlin Mills Co., 58 N.H. 52, both of which, however, stated that the result could be justified by the evidence of retention of control over the workmen of the independent contractor by the defendant. Defendants were held liable for the faults of otherwise independent contractors on the basis that they retained control over the details of their work in Paro v. Whitefield Sav. Bank & Trust Co., 77 N.H. 394, 92 A. 331, and Winslow v. Wellington, 79 N.H. 500, 111 A. 631. Until McCarthy v. Souther, supra, control as the deciding factor had been restricted to cases in which the alleged servant was in all other respects an independent contractor. But see Tuttle v. Dodge, 80 N.H. 304, 116 A. 627 where the court stated that the employer exercised no control over the details of the employee's route, but enforced respondeat superior.
Restatement, Second, Agency retained without change the definition of a servant contained in section 220 of the first Restatement. In order to put into proper perspective the control test of McCarthy...
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Kassel v. Gannett Co., Inc., 88-1766
...master-servant liability is "whether on all the facts the community would consider the person an employee." Hunter v. R.G. Watkins & Son, Inc., 110 N.H. 243, 265 A.2d 15, 17 (1970); see also Burnham v. Downing, 125 N.H. 293, 480 A.2d 128, 130 (1984) (existence of employer-employee relations......
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In Re Fedex Ground Package System Inc.
...person an employee.'" Boissonnault v. Bristol Federated Church, 642 A.2d 328, 329 (N.H. 1994) (quoting Hunter v. R.G. Watkins & Son, Inc., 265 A.2d 15, 17 (N.H. 1970)). FedEx also relied on First Circuit case law stating that "New Hampshire... has decided to leave the marshalling and weighi......
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In re Fedex Ground Package System Inc.
...” Boissonnault v. Bristol Federated Church, 138 N.H. 476, 642 A.2d 328, 329 (1994) ( quoting Hunter v. R.G. Watkins & Son, Inc., 110 N.H. 243, 265 A.2d 15, 17 (1970)). FedEx also relied on First Circuit case law stating that “New Hampshire ... has decided to leave the marshalling and weighi......
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In re Fedex Ground Package Sys., Inc., Employment Practices Litig.
...may not have had the "right to control the manner and means (the details, in other words) of operating the car." Hunter v. R. G. Watkins & Son, Inc., 265 A.2d 15, 17 (N.H. 1970). The court parts ways with FedEx Ground's reading of the law at the point FedEx Ground implicitly concludes that ......