Ritchie v. Waller

• Citation: 28 A. 29,63 Conn. 155
• Court: Supreme Court of Connecticut
• Decision Date: 22 May 1893
• Parties: RITCHIE v. WALLER.

28 A. 29

63 Conn. 155

RITCHIE

v. WALLER.

Supreme Court of Errors of Connecticut.

May 22, 1893.

Appeal from superior court, Fairfield county; J. M. Hall, Judge.

Action by Peter Ritchie against William Waller. Judgment for plaintiff. Defendant appeals. Affirmed.

J. J. Rose and G. P. Carroll, for appellant.

N. W. Bishop and E. O. Hull, for appellee.

TORRANCE, J. This is an action against a master for damage caused by the negligence of his servant. The court below, upon the facts found, decided that the injury occurred solely through the negligence of the servant. One of the claims of the defendant, though it was not pressed on the argument, is that the court, as matter of law, erred in so doing. Upon this point it is sufficient to say that the record does not present any question of law for review. Upon the facts as they appear of record we must regard the decision of the trial court upon this point as final and conclusive. In the discussion of the case, therefore, we will assume that the negligence of the servant and the damage resulting therefrom have been determined against the defendant, and that the question of the responsibility of the master therefor alone remains to be considered.

The facts bearing upon this question are in substance the following: The defendant is a farmer in Trumbull, and at the time of the injury, in September, 1891, and for some years prior thereto, had been accustomed twice a week to get manure for his farm from a brewery on North Washington avenue, in Bridgeport. This avenue and Main street intersect at a point called "Bull's Head," about a thousand feet south of the brewery. The avenue and Main street are connected by three cross streets, called, respectively, beginning with the one next north of Bull's Head, "Mulloy's Lane," "Grand Street," and "Commercial Street." The brewery is nearly opposite the point where Mulloy's lane enters the avenue. In December, 1890, the defendant hired the servant in question, whose name is Blackwell, as a farm laborer. Soon thereafter the defendant, for the purpose of getting a load of manure, and of showing Blackwell the place to procure it in the future, drove with him from the farm to the brewery, passing down Main streeet to Grand, through Grand to North Washington avenue, and thence southerly to the brewery. After getting a load they returned through Grand street to Main, and thence northerly home. Neither at that time nor on any subsequent occasion did the defendant give any special directions or instructions as to what particular route Blackwell should follow in going to or returning from the brewery with manure, although he supposed Blackwell took the same route followed on the first occasion above mentioned. In fact, Blackwell went or returned sometimes by way of Mulloy's lane, and sometimes by way of Grand or Commercial street, and the defendant never at any time made any inquiries as to what route he took. On the day of the injury the defendant told Blackwell to go to the brewery after a load of manure, and to spread it on a designated lot on the farm. These Were all the directions given to him. The defendant did not know that he intended to go to any other place. Pursuant thereto, Blackwell, with the wagon and two horses of the defendant, went to the brewery, and procured a load of manure. After so doing, instead of returning to Main street through the lane or Grand or Commercial street, and going thence northerly towards Trumbull, as usual, Blackwell drove southerly down the avenue to Bull's Head, and thence into Main street, and thence northerly in the direction of home till he came to a certain shoemaker's shop on Main street, southerly of Mulloy's lane. There he got off his wagon, leaving his team for about five minutes, and went into the shoemaker's shop. Blackwell's purpose and object in so doing was to see the shoemaker about soling or mending the shoes belonging to and then worn by him. While he was in the shop, the team started at a slow trotting gait up Main street, till it came opposite the plaintiffs market, where the wheels of the defendant's wagon caught in the left rear wheel of the plaintiff's wagon, upsetting the same, and causing the injuries to the plaintiff and his property referred to in the complaint. Blackwell was employed by the month, and the carting of the manure was within the ordinary scope of his employment as a servant of the defendant, and he was in the service of the defendant at the time of the accident.

Just here it may be well to call attention to two points in the finding, and to settle its interpretation with reference to them. After stating that Blackwell drove around to the shoemaker's shop, and there left his team and went into the shop, the court, as we have seen, adds that "Blackwell's purpose and object in so doing was to see the shoemaker about soling or mending his shoes." Now, whether the phrase "in so doing" refers to the entire conduct of Blackwell from the time he left the brewery till the horses ran away, or only to his act in leaving them and going into the shoemaker's shop, is perhaps not free from doubt. We will assume, however, in accordance with what seems to be the claim of the defendant, that the phrase in question refers to the entire conduct Again, the finding is that Blackwell "was in the service of the defendant at the time of the accident." This may mean simply that at the time of the accident his term of service had not expired, and that he had not been discharged, or it may mean that in making the detour he was, and continued to be, in the execution of the master's business, within the scope of his employment. We shall, for the purposes of the discussion, assume that the former meaning is the correct one.

Whether, then, upon the facts found, the master is responsible for the negligence of the servant is the important question. The general rule of law applicable in this class of cases is accurately and comprehensively stated in Stone v. Hills, 45 Conn. 47, as follows: "For all acts done by a servant in obedience to the express orders or directions of the master, or in the execution of the master's business, within the scope of his employment, and for acts in any sense warranted by the express or implied authority conferred upon him, considering the nature of the services required, the instructions given, and the circumstances under which the act is done, the master is responsible; for acts which are not within these conditions the servant alone is responsible." Of these "conditions" of liability, the one under which the present case seems to fall, if it falls under any of them, is the one for acts done "in the execution of the master's business within the scope of his employment." This rule or "condition" of liability is in itself simple and intelligible enough, but, in determining whether any particular case falls within it or not difficult and troublesome questions may arise. "The cases which have arisen upon this subject have from the earliest times been productive of much astute and interesting discussion in courts of law, and eminent judges have differed widely in their decisions. It has always been a matter of extreme difficulty to apply the law to the ever-varying facts and circumstances which present themselves." Rayner v. Mitchell, 2 C. P. Div. 357. In reality, however, the difficulty here spoken of arises in ascertaining whether the act was done in the execution of the master's business within the scope of his employment which, as we shall see, is ordinarily a question of fact, and not in applying the rule when that fact has been ascertained. This fact once determined, the rule can be easily applied, but the rule cannot at all aid in the determination of the fact. The rule tells us that the master's liability depends upon whether the acts were done in the execution of his business within the scope of his employment, but it does not help us to determine whether they were or not so done.

In like manner the general rule of construction is that the intent of the parties shall prevail. This tells us what to do when the intent has been ascertained, but affords no aid in a particular case in ascertaining what the intent is. Whether, then, the act of a servant, for which it is sought in a particular case to hold the master responsible, was done in the execution of the master's business within the scope of the employment, or not, must, from the nature of things, in most cases be a question of fact, to be determined as such by...