Login v. Waisman

• Decision Date: 05 January 1927
• Citation: 136 A. 134
• Parties: LOGIN v. WAISMAN et al.
• Court: New Hampshire Supreme Court

136 A. 134

LOGIN

v. WAISMAN et al.

Supreme Court of New Hampshire. Hillsborough.

Jan. 5, 1927.

Exceptions from Superior Court, Hillsborough County; Sawyer, Judge.

Case for personal injuries by Euflm Login against Sam and Sol Waisman. Plaintiff was nonsuited, and he brings exceptions. Exceptions overruled.

The plaintiff's evidence tended to prove that the defendants' horse was stabled in a barn belonging to one Rovner, which was hired jointly by the defendant Sam and one Kamenker. Upon the day of the accident the plaintiff went to the barn with Kamenker, one Lashuck, and two other men. He backed the horse out of the stall where it was hitched, gave it water, and then returned it to the stall. As he was coming out of the stall, the horse kicked him. Three days before the accident the same horse had kicked Rovner. The plaintiff offered to testify that Kamenker told him that he was employed by the defendant Sam, and that the defendant had sent him (Kamenker) to procure the plaintiff to take care of the horse. This testimony was excluded, and the plaintiff excepted.

The plaintiff also offered the testimony of one Waligura "that some time in May following the accident Mike Lashuck came to his store and told him that he was leaving the jurisdiction; that Sam Waisman had paid him money to leave the jurisdiction; and that he didn't care if Login lost two legs; that he had got his from Waisman." This testimony was excluded, and the plaintiff excepted. Further facts appear in the opinion.

Maurice F. Devine and John E. Tobin, both of Manchester, for plaintiff.

Osgood & Osgood and Clinton S. Osgood, all of Manchester, for defendants.

BRANCH, J. 1. The plaintiff contends that even if he occupied the status of a trespasser at the time of the accident he was entitled to go to the jury upon the admitted evidence, under the rule laid down in Marble v. Ross, 124 Mass. 44, that:

"The law holds the keeper of an animal known to be dangerous, which injures another, to the same degree of responsibility as in cases of wanton injury."

The law is otherwise in this jurisdiction. The plaintiff must prove "either that the intention was unlawful or that the defendant was at fault." Brown v. Collins, 53 N. H. 442, 451, 16 Am. Rep. 372. In order to make out a case for the jury the plaintiff was bound to produce evidence of some relationship between the parties which would impose upon the defendant a duty of exercising care for the protection of the plaintiff. No such evidence was offered unless it is to be found in the testimony which was excluded.

2. For the purpose of establishing such a relationship the plaintiff offered to testify that in undertaking to water the horse as he did he acted upon the request of Kamenker and that Kamenker told him he had been sent by the defendant to employ the plaintiff for this purpose. In so far as the offered testimony tended to show that Kamenker acted as the agent of the defendants in procuring the services of the plaintiff, it was pure hearsay and clearly inadmissible for the purpose of proving the fact of agency. Clough v. Rockingham County Light & Power Co., 75 N. H. 84, 71 A. 223; 2 Wig. Ev. § 1078. No other evidence of Kamenker's agency was produced, and hence his alleged declarations could not bind the defendants. Since the offered testimony was not admissible for the purpose of supplying the missing link in the plaintiff's chain of evidence, it is not necessary in considering the question of the nonsuit to determine whether it might be admissible for other purposes—i. e., to explain the plaintiff's conduct or to contradict Kamenker.

3. A deputy sheriff testified that he had attempted to make service of a subpœna upon Mike Lashuck, who was a witness to the accident, but that he was unable to find him. The plaintiff then offered the testimony of Waligura above set...