Santo v. Maynard

• Decision Date: 04 January 1889
• Parties: SANTO v. MAYNARD.
• Court: Connecticut Supreme Court

17 A. 700

57 Conn. 157

SANTO

v. MAYNARD.

Supreme Court of Errors of Connecticut.

Jan. 4, 1889.

Appeal from court of common pleas, New London county; CRUMP, Judge.

J. M. Thayer and C. F. Thayer, for appellant. D. G. Perkins, for appellee.

LOOMIS, J. This is an action to recover damages for an injury to the plaintiff and his horse, wagon, and harness, caused by his horse, while he was driving it, taking fright at a pile of wood left by the defendant near the traveled path in a public highway. The contention before this court relates to the admission of evidence, to the allowance of an amendment to the complaint which obviated the defendant's objection to the evidence, and to the refusal of the court to allow the defendant to file a new answer to the amended complaint and try the case anew. The complaint at first simply charged that the wood constituting the nuisance was unlawfully and negligently placed in the highway by the defendant, and the parties went to trial upon the general issue, and the proceedings upon the trial are described as follows in the finding of the court: "The plaintiff offered evidence to prove, and proved, that on or about June 25, 1887, the defendant's son, Clarence Maynard, who was then seventeen years of age, and lived with his father, was directed by him to cart some cord-wood from the defendant's wood lot, where it then was, to the Baltic store, where it had been sold, and was to be delivered by the defendant; and that, while employed about the business, Clarence, without the express consent of his father, and indeed without his knowledge, deposited the pile of wood described in the complaint upon the highway at the place stated. It was further proved that the defendant's wood lot, from which he directed his son to cart the wood, was of such a rough and uneven surface that it was impossible there to pile upon a cart a full load of wood; and that if the son was to carry a full load to Baltic it was necessary for him to deposit some of the wood at some other place than in the lot, to top off his load with. There was no place so convenient for this as that selected by the defendant's son, and named in the complaint. The defendant had been in the habit, when carting wood from the wood lot in company with his son, of depositing a portion of a load of wood along the highway for the purpose of topping off his loads, and he testified that his son in so acting in the instance complained of was doing what was his own custom to do in carting wood, namely, to leave a load by the high way to top off with; that a good workman would so leave it; and that the place chosen by the son was a good place for the purpose. The wood so left by the highway was an object calculated to frighten a horse of ordinary gentleness. The plaintiff's horse was such an one, To the testimony as to the act of the son in leaving the wood by the highway the defendant's counsel objected, but did not state the ground of his objection, except to claim in general terms that it was irrelevant, and stated that he did not insist upon a ruling at the time, but agreed to have the evidence come in, reserving the right to ask for its rejection in his argument. The evidence was accordingly admitted when offered, and upon the claim of the defendant's counsel in his argument that the court should not consider the evidence as to the son's negligent act, since the complaint contained only an allegation as to an act of the defendant personally, the plaintiff's counsel offered the amendment attached to the complaint, which the court allowed (although believing the complaint as it stood to be sufficient) on the ground that if the objection had been specifically stated at the time the evidence was offered an amendment would have been asked for then, and would have been allowed. The defendant objected to the allowance of the amendment, and claimed the right, if the amendment was permitted, to file a new answer, and try the case anew; but the court overruled this claim, since the case had been tried on its merits. And it did not appear to the court that the substance of the amendment was a surprise to the defendant, or that his situation would have been materially changed had the amendment not been allowed."

The complaint, as first brought, set forth the act relied upon for recovery according to its legal effect. The act of a servant pursuant to his master's express command, or in the regular course of his employment, is the act of the master. The allegation, therefore, was all that could be required under...