Richard v. Amoskeag Mfg. Co.

• Decision Date: 28 June 1919
• Citation: 109 A. 88
• Parties: RICHARD v. AMOSKEAG MFG. CO.
• Court: New Hampshire Supreme Court

109 A. 88

RICHARD

v. AMOSKEAG MFG. CO.

Supreme Court of New Hampshire. Hillsborough.

June 28, 1919.

On Motion for Rehearing March 2, 1920.

Plummer, J., dissenting.

Transferred from Superior Court, Hillsborough County; Kivel, Chief Judge.

Action by Doria Richard against the Amoskeag Manufacturing Company, resulting in verdict for plaintiff, and defendant excepts. Exceptions overruled, and judgment ordered on the verdict.

Action for personal injuries which the plaintiff claims to have received by being pushed or thrown against a roping box by one Smith, who at the time had charge of the help in the room where the plaintiff worked. Verdict for the plaintiff. The defondant's motions for a nonsuit and for a directed verdict were denied subject to exception.

Aime E. Boisvert and Taggart, Tuttle, Wyman & Starr, all of Manchester, for plaintiff.

Warren, Howe & Wilson and Louis A. Thorp, all of Manchester, for defendant.

WALKER, J. The question is whether the defendant is responsible for the injuries sustained by the plaintiff in consequence of the act of Smith in forcing her back into the room where she was employed. The evidence justified the jury in finding that she was violating the rules of the defendant in leaving her work and standing in or near the door preparatory to leaving the factory when the noon signal should be given; that Smith had immediate charge of the room and was charged with the duty of requiring the help, including the plaintiff, "to stay in the room or near their work until the whistle blew at 12 o'clock"; that at the time of the assault he was attempting to enforce this rule, and not to punish the plaintiff to gratify his personal spite; and that while thus engaged in the defendant's service and in the performance of his duty of superintendent of the help he used more force upon the plaintiff than was reasonably necessary or justifiable, which resulted in the injuries complained of. Much of the argument for the defendant is based upon the assumption of facts which upon the evidence the jury were not only not bound to find but were at liberty to negative; as, for instance, that Smith's assault upon the plaintiff was vindictive and not resorted to as a means of performing his duty to the defendant. That there was evidence to the contrary is not open to doubt.

It is argued that the evidence does not warrant the finding of negligence on the part of the defendant. This contention is based upon the assumption that the use of any force by Smith was willful and vindictive, and so an act of trespass, and not merely careless and unintentional and a negligent act. But the assumption is unsound. Because Smith used unreasonable force, it does not follow that he was not negligent, in the means he adopted to perform his service of superintendence. There was ample evidence that he was engaged in doing what he had a right to do, and that he was not actuated by malice toward the plaintiff or by a desire to punish her, or to inflict bodily injury upon her. The jury was justified in finding his use of unwarranted force was due to his want of ordinary care in rightfully attempting to use such force as his employment authorized. But the law of the trial was that the action was one for negligence, and no exception was interposed by the defendant to the charge of the court which was clearly predicated upon that theory. To delay raising that objection until the case is before this court would seem to preclude the defendant from taking that position. Gage v. Railroad, 77 N. H. 289, 296, 90 Atl. 865, L. R. A. 1915A, 363. The same ruling applies to the argument that Smith and the plaintiff were fellow servants. That point was not specifically referred to at the trial, was not submitted to the jury, and cannot now be profitably discussed. The inference is that it was understood the fellow-servant doctrine had no application. A forced construction of the language used by the court or by counsel does not overcome the conclusion that the case was not tried upon that theory, and that the jury did not understand that that issue was submitted. Nor was any request made for its submission.

The law applicable to the facts which the jury were justified in finding, upon the question of the defendant's liability, is not open to serious doubt in this jurisdiction.

"The master is responsible for the acts of the servant, while engaged in his master's work, which arc done as a means and for the purpose of performing that work, and this is so whether the wrong is done by the servant's performing his master's business in a negligent manner or by a wanton or reckless purpose to accomplish it in an unlawful manner." Rowell v. Railroad, 68 N. H. 358, 359, 44 Atl. 488: Cordner v. Railroad, 72 N. H. 413, 57 Atl. 234.

"However it may be in other jurisdictions, 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. 535, 21 L. R. A. (N. S.) 93, 139 Am. St. Rep. 670; Patenaude v. Railroad, 77 N. H. 74, 87 Atl. 249.

The same principle is applicable when the assaulted party is a coemploye and not what is termed a strangei, or third party. 4 Lab. M. & S. § 1466.

But it is argued that while this principle of law may be sound when the assaulting servant is authorized to use reasonable physical force upon or against a stranger to accomplish the master's purpose, as in the case of a railroad conductor in removing a trespasser from the train, it does not apply when the use of force is not authorized either expressly or impliedly by the master. But this is nothing more than saying that, when no degree of physical force is reasonable or to be expected in the proper or usual method of performing the required service or work, it would be unreasonable to infer that the use of force was authorized, or to hold that the jury could find that fact. This view of the law is illustrated by cases cited by the defendant; as in Crelly v. Telephone Co., 84 Kan. 19, 113 Pac. 386, 33 L. R. A. (N. S.) 328, when a local manager of a telephone exchange assaulted an operator because she refused to sign a voucher for her pay; and in Sunderland v. Express Co., 133 Minn. 158, 157 N. W. 1085, L. R. A. 1916E, 1151, where a servant in seeking to collect a bill due his master assaulted the debtor because he used abusive language. If the master's liability is conceded to depend upon the question of authority reasonably incident to the work in hand, the jury might have found that the defendant authorized Smith to use some degree of force in keeping the help in the room engaged in the performance of their work. When the plaintiff quitted her work it was Smith's duty to call her attention to her violation of the rule of the room and in some way to request her to resume her proper place. To make the request verbally would have been ineffective because she did not understand the English language, the only language he could use. He was obliged to resort to some other means of informing her of his request, as, for instance, by putting his hand upon her and leading or pushing her back to the position she had wrongfully left. The use of some degree of physical force might reasonably be found to have been authorized by the defendant, and it follows, in accordance with the defendant's argument and the authorities above referred to, that the defendant would be liable for the excessive and unreasonable force used by Smith in the performance of his duty to the defendant.

But the principle applied in cases of this character has been stated to depend, not upon the question whether the master authorized the employe or agent to use force, but upon the question whether the latter used the force complained of as a means of doing what he was employed to do. Grant v. Singer Co., 190 Mass. 489, 77 N. E. 480, 6 L. R. A. (N. S.) 567; Patenaude v. Railroad, 77 N. H. 74, 87 Atl. 249. When there is evidence that the assaulting party was engaged within the scope of his employment under his contract with the master, and some degree of physical force becomes reasonably necessary toward another servant for the accomplishment of the master's purpose, the use of excessive force may render the master liable, as it would in the case of a trespasser ejected by similar violent means; especially where the fellow servant doctrine is not invoked, as it was not in the trial of this case. The acts of the servant under such circumstances, though amounting to an unlawful assault in violation of the express orders of the master, may be found by the jury to be within the scope of his employment.

"The simple test is, whether they were acts within the scope of his employment, not whether they were done while prosecuting the master's business, but whether they were done by the servant in furtherance thereof, and were such as may fairly be said to have been authorized by him. By 'authorized' is not meant authority expressly conferred, but whether the act was such as was incident to the performance of the duties intrusted to him by the master, even though in opposition to his express and positive orders." Wood, M. & S. 307.

If, on the other hand, it appears that the unlawful act was in no proper sense incident to the servant's employment, although it may have been with a purpose to promote the master's interest (Cordner v. Railroad, 72 N. H. 413, 57 Atl. 234; Patenaude v. Railroad, 77 N. H. 74, 87 Atl. 249), the plaintiff is not entitled to recover, in the absence of ratification by the master, for the reason that the servant's act was not within the scope of his employment even incidentally, and consequently was unauthorized.

The principal difficulty in cases of this character has arisen not so much in...