Tier v. Miller

• Decision Date: 05 April 1911
• Citation: 79 A. 417,80 N.J.L. 691
• Parties: TIER v. MILLER.
• Court: New Jersey Supreme Court

79 A. 417

80 N.J.L. 691

TIER

v. MILLER.

Supreme Court of New Jersey.

April 5, 1911.

Error to Circuit Court, Passaic County.

Action by Valentine Tier, administrator of Harry L Tier, deceased, against Frederick A. Miller. Judgment for plaintiff. Defendant brings error. Affirmed.

Argued June term, 1910, before GUMMERE, C. J., and TRENCHARD and MINTURN, JJ.

Wilbur Van Houten, for plaintiff in error.

Ward & McGinnis, for defendant in error.

MINTURN, J. The deceased was a boy about 10 years of age, who with other boys jumped on the reach of the defendant's truck without an invitation so to do, and, falling under the wheels, was killed. The truck and team were under the control of defendant's driver, and the truck consisted of a long wagon, without a body, but which was held together by a long pole or reach, which extended a length of 35 feet. The deceased sat upon this reach, at a distance of about 25 feet from the driver, and between the front and rear wheels. Upon observing the boys on the reach, the driver shouted to them to get off, and, without waiting for them to do so, struck the horses with his whip, causing them to start forward sharply, and causing the truck to lurch forward, as a result of which the deceased fell from the truck, and the rear wheel ran over him, causing injuries which resulted in his death. The plaintiff, who is the father of the boy, brought this suit as his administrator to recover damages under the death act. The trial resulted in a verdict for the plaintiff, and the defendant assigns error.

The declaration is predicated on two counts alleging the defendant's liability upon two legal postulates: First, that the boy was upon the wagon "at the invitation and request, and with the permission and consent of the defendant"; and, secondly, that the driver, "acting within the scope of the direction and authority of the said defendant," whipped the horses and caused them to "jump for the purpose of throwing" the deceased.

There was no testimony adduced in support of the first count, and the trial court, with the consent of plaintiff's attorney, limited liability to proof under the second count.

It might have been urged, under the second count, that, since liability was predicated upon a willful and malicious act of the defendant's servant, under the settled doctrine in this state, and quite generally accepted elsewhere, no liability was thereby imposed upon the master. Holler v. Ross, 68 N. J. Law, 324, 53 Atl. 472, 59 L. R. A. 943, 96 Am. St. Rep. 546; Brokau v. N. J. R. Trans. Co., 32 N. J. Law, 328, 90 Am. Dec. 659; Rounds v. D., L. & W. R. R., 64 N. Y. 129, 21 Am. Rep. 597; Wright v. Wilcox, 19 Wend. 343, 32 Am. Dec. 507.

But the case was tried upon the theory that the act of the driver in whipping up his horses was an act performed in furtherance of his duty as an employs of the defendant, for the proximate results of which, upon the doctrine of respondeat superior, the defendant became answerable in damages. The parties having elected to proceed upon the conceded liability of the defendant based upon that theory of the law, the sole issue presented was one of fact for the jury to determine, whether or not the act of tort-feasance complained of was an act...