Tullgren v. Amoskeag Mfg. Co.

CourtSupreme Court of New Hampshire
Citation133 A. 4
PartiesTULLGREN v. AMOSKEAG MFG. CO. (two cases).
Decision Date02 March 1926

On Motion for Rehearing, April 6, 1926. Transferred from Superior Court, Hillsborough County; Burque, Judge.

Actions by Edwin Tullgren, as administrator and personally, against the Amoskeag Manufacturing Company. Transferred on plaintiff's exceptions to granting of motions for directed verdicts for defendant, and on defendant's exceptions to admission of evidence. Plaintiff's exception sustained in first action and overruled in second.

Actions for negligence, one for causing the death of the plaintiff's intestate, and the other for damages on that account claimed by the intestate's widower. Trial by jury. The decedent became so sick while at work at the defendant's factory that the overseer had her sent home in an automobile kept and used by the defendant. When about 700 feet from her home, the driver left her on the road where there was water over it, and she went by foot the rest of the way. Soon after reaching home she died. Transferred on exceptions by the plaintiffs to the granting of motions for directed verdicts for the defendant, and on the latter's exceptions to the admission of evidence.

Thorp & Branch, of Manchester, for plaintiff.

Warren, Howe & Wilson, of Manchester (De Witt C. Howe, of Manchester, orally), for defendant.

ALLEN, J. It was the defendant's custom to carry home employes taken sick while at work, but no claim is understood to be made that the custom showed any agreement for its observance so as to make it a term of the contract of employment, the validity of which made it a duty of the defendant to render the service. Without such duty it could in no event be maintained that the employe* so served and the driver of the employer's conveyance are fellow servants. And, even if the duty thus exists, it would seem ineffective to produce such relationship. While cases hold that, when the employer by the contract of employment furnishes transportation to the employs in going to and from and about his work, the latter and the driver of the conveyance are fellow servants, it is on the theory that while so transported the employ is giving attendance to his duty and engaged in an incident of his employment. Kilduff v. Railway, 81 N. E. 191, 195 Mass. 307, 9 L. R. A. (N. S.) 873, and cases cited; Dayton Coal, etc., Co. v. Dodd, 188 F. 597, 110 C. C. A, 395, 37 L. R. A. (N. S.) 456, and cases cited. But one too sick to work cannot be said to be on duty, and, when thus affected, one is outside the scope of employment. If there is a duty to carry a sick employs home or render him other relief, the employs does not continue at work or in employment while the service is furnished, but the performance of the duty is part of the compensation or benefit due him for his work under the terms of his engagement. The right to be taken home or to some other suitable place is a consideration for, but not a part of, the employment. O'Bierne v. Stafford, 87 A. 743, 87 Conn. 354, 46 L. R. A. (N. S.) 1183; Dickinson v. Railway, 59 N. E. 60, 177 Mass. 365, 52 L. R. A. 326, 83 Am. St. Rep. 284; Indianapolis, etc., Co. v. Romans. 79 N. E. 1068, 40 Ind. App. 184; Elmer v. Pittsburgh Rys. Co., 96 A. 1054, 251 Pa. 505; Enos v. Rhode Island, etc., Co., 67 A. 5, 28 R. I. 291, 12 L. R. A. (N. S.) 244. In being taken to her home, the decedent and the driver of the car were not fellow servants.

Assuming the undertaking was gratuitous, and admitting the duty to use due care in such an undertaking, the defendant urges that, in view of its gratuitous character, the undertaking required care only in furnishing a suitable vehicle and competent driver.

The advent of the automobile has resulted in frequent situations where an invited guest is injured by the negligence of the owner's servant as the driver of the automobile. While there is some conflict, the weight of authority enforces the doctrine of holding the owner responsible for such negligence. No case in this state has heretofore presented the situation, but it is said in Dearborn v. Fuller, 107 A. 607, 608, 79 N. H. 217, 219:

"If * * * a finding of authority conferred [for the driver to give the guest a free ride] could reasonably have been made, the case would have been for the jury."

Does this dictum state the law? The duty to use care in rendering a service arises, not from a right to receive the service, but from the relation between the parties which the service makes. The relation being established, the legal incidents pertaining to it follow. The right to receive care being premised, it is not ordinarily lost by delegation to others of the performance of the service, and the relation between the parties is unaffected by the assignment of the undertaking to one's servant. The maxim of respondeat superior rests on this basis.

"The plaintiff in the suit, against the master must establish a relation of the master to him. He cannot do this by showing the master's presence, for he was absent; nor can it be proved by authority conferred, for none was given. It can only be shown by resorting to the legal fiction that the act of the servant was that of the master." McNamara v. Chapman, 123 A. 229, 231, 81 N. H. 169, 171, 172.

If the defendant had been a real person, and had personally driven the car, liability for looking after the decedent's safety would not be questioned. Under the rule of respondeat superior the defendant is no less liable because he has a servant take his place in carrying out his undertaking.

But it is argued that, although this is the general principle, yet it is subject to qualification, because no reasonable man, in rendering a gratuitous service, would assume responsibility for the negligence of his servant assigned to execute the service. The logical fallacy of tha argument lies in failing to distinguish between what is voluntarily assumed and its legal consequences. While one may have choice of action, action taken is subject to the law governing it. When it is said that one who enters upon an undertaking assumes the legal duties relating to it, what is really meant is that the law imposes the duties on him. A contract is not a law, nor does it make law.

"It is the agreement plus the law that makes the ordinary contract an enforceable obligation." Stanley v. Kimball, 118 A. 636, 637, 80 N. H. 431, 434.

The conception that duties are imposed rather than assumed does not mean that the conditions of liability may not ordinarily be regulated by the terms of the contract. Such regulations are valid so far as the law enforces them, as it ordinarily does. But the law governing the relation which arises from the execution of the contract is not to be altered by the parties. Kenney v. Wong Len, 128 A. 343, 81 N. H. 427, 438. Liability for negligence is imposed by law, regardless of and despite the terms of the contract and the understanding of the parties. Even if it were assumed that the parties did not contemplate that the defendant should be liable for the driver's negligence, it would not affect the law making it so. The duty to use due care obtains whether one acts by himself or by another. To hold that, in the case of gratuitous service, it is limited to only what he does by himself would seem an anomalous exception, not based on principle.

Nor is argument for abridgment of liability supported on grounds of policy and expediency.

To say that one who renders a gratuitous service should assume responsibility only in making proper arrangements, but not in the actual performance of the service, except in so far as he acts in person, because no reasonable man would assume such an undertaking on any other basis, seems a defective argument to show the expediency of such a rule in two respects. It is not a matter of common knowledge that the ordinary man would so limit his action in all cases, and, as a matter of "fundamental justice and reasonableness" (Cavanaugh v. Railroad, 79 A. [ 694, 696, 76 N. H. 68, 72; Stanley v. Kimball, 118 A. 636, 80 N. H. 431, 435), the reason, if confirmed in fact, seems insufficient. While the average man may not purposely incur unnecessary liability, yet he does incur the liability incident to his conduct and actions. A motive to save or help others may be as urgent as one to benefit himself, and the legal consequences of his proposed action under either situation may or may not be sufficient to deter him.

Differences in the legal standard of care are not called for by differences in the occasion for the creation of the relation, nor are differences in the application of the rule making the master responsible for his servant's defaults dependent on the facts leading to the relation, with the single exception of cases of common employment. Reasonable justice in these respects is better attained' by uniformity of principle than by distinctions. Inequality of circumstance is better dealt wfth as matter of fact than by legal rules.

The present case, where the decedent appears to have accepted the invitation with some reluctance, after being urged, where her condition naturally invoked help, where the object of the journey was serious and important, and where the defendant made it its business to see that she was given aid, as compared with a case where the service is due as a legal obligation, well illustrates the reasonableness of a common measure of liability. If men in general would use less care in one situation than in the other, It is a question of fact for the jury. It cannot be said to be common knowledge that they would.

The service being assumed, the plaintiff was entitled to receive due care in being taken home, not only in means, but in manner as well. It was important that she should be taken home in safety, and care in her travel included the conduct of the travel as well as the arrangements for it. Responsibility for actual performance of the service was as much called for as...

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    ...than otherwise not be encountered on a particular occasion does not dispense with the exercise of care." Tullgren v. Amoskeag Manufacturing Co., 82 N.H. 268, 276, 133 A. 4, 8 (1926). The test is whether "there is some probability of harm sufficiently serious that [a reasonable and prudent p......
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