Weatherman v. Handy

• Decision Date: 13 November 1917
• Docket Number: No. 2033.,2033.
• Citation: 198 S.W. 459
• Parties: WEATHERMAN v. HANDY.
• Court: Missouri Court of Appeals

198 S.W. 459

WEATHERMAN v. HANDY.

No. 2033.

Springfield Court of Appeals. Missouri.

November 13, 1917.

Appeal from Circuit Court, Wright County; C. H. Skinker, Judge.

Action by Jess Weatherman against R. S. Handy. Judgment for plaintiff, and defendant appeals. Reversed.

E. H. Farnsworth, of Mountain Grove, and Robert Lamar, of Houston, for appellant. A. M. Curtis, of Hartville, and Chas. W. Evans, of Mountain Grove, for respondent.

STURGIS, P. J.

The defendant in this case was the owner of a certain stallion and employed one Ellis to care for same at Ellis' barn at Mountain Grove, Mo., during the breeding season of 1916. The defendant lived in the country and placed the horse in the care and control of Ellis. Defendant caused these facts, together with the terms of service, to be advertised in that neighborhood. The plaintiff sues the defendant because of negligence in handling the said stallion, resulting in the death of plaintiff's mare. The defendant admits that the evidence is sufficient to warrant a finding of negligence by the person handling the horse, and that said negligence caused the death of plaintiff's mare. The defense is that the negligence causing plaintiff's loss was the negligence of a person in no way the agent, servant, or employé of this defendant, and for whose negligence the defendant is not liable.

The theory on which the defendant was held liable, and on which the plaintiff recovered in the trial court, is shown in the following instruction given for the plaintiff:

"If the defendant employed M. A. Ellis to handle his horse and said Ellis left one Cleaver in charge of said horse with the understanding, express or implied, that said Cleaver should handle said horse in serving mares, and if said Cleaver was in charge of said horse at Ellis' barn in pursuance of such arrangement made by Ellis, then said Cleaver was the agent of defendant in handling said horse, within the meaning of these instructions."

This instruction is bottomed on the proven facts of the case, and if it embodies a correct proposition of law, then the plaintiff's judgment should be affirmed; otherwise not.

There is a suggestion in the argument that there is some evidence that defendant authorized or consented to the act of his agent and servant, Ellis, in turning over the care and control of the horse on the occasion in question to this man Cleaver, whose negligence caused the injury in question; but no such theory is embodied in the plaintiff's instruction. The instruction is bottomed on the proposition that Ellis, and not the defendant, put the horse in Cleaver's charge with the understanding, express or implied, that Cleaver should handle said horse in serving mares. This is in accordance with the evidence; for both defendant and Ellis testified that Ellis was employed to take care of the horse and was not to permit any one else to do so. Ellis further stated that on the occasion in question he was temporarily called away from the barn and told this man Cleaver, who happened to be there at the time, to look after same until he returned. Ellis, who it seems was conducting a regular livery barn in addition to handling this stallion, denies that he intended to have Cleaver handle the stallion during his temporary absence, but only to look after the barn and other stock there. The jury was justified, however, in finding that Ellis left Cleaver in charge of the horse with the implied understanding that Cleaver should handle the horse in serving mares, should occasion arise, in Ellis' absence. Defendant was not present and knew nothing of this arrangement or of Cleaver's handling the horse until after the accident. The question presented, therefore, both by the facts and by the plaintiff's instruction based thereon, is the liability of defendant, as owner of the horse, for the negligent act of Cleaver, a stranger to the defendant, because defendant's agent, Ellis, in charge of the horse, put same in charge of Cleaver to do with him what defendant had intrusted to Ellis.

There is considerable conflict in the authorities on this question of the liability of the master for the negligent act of a third party whom the servant without authority calls to his assistance, or substitutes for himself in the performance of the master's business. Whenever the facts show combined or commingled acts of negligence on the part of the servant and such third party, or are such that the servant can be said to be a party to, or to have participated in, the negligent act of the third party, then there is liability. This is true because the law holds every person who is guilty of negligence in any way contributing to the injury responsible therefor, and the master, being liable for the negligent acts of one of the parties, is responsible for all. His responsibility, however, is bottomed on the negligence of his servant. James v. Muehlebach, 34 Mo. App. 512, 518, and cases there cited; Hollidge v. Duncan, 199 Mass. 121, 85 N. E. 186, 17 L. R. A. (N. S.) 982; Board of Trade Bldg. Corporation v. Cralle, 109 Va. 246, 63 S. E. 995, 22 L. R. A. (N. S.) 297, 132 Am. St. Rep. 917.

The question whether the bare act of substituting or attempting to substitute another person to do the work, in whole or in part, which the master has intrusted to the servant is such participating or commingling negligence as to make the master liable for the consequences, is held in the affirmative by some authorities. 1 Thompson on Negligence (2d Ed.) § 589 (see, however, section 590); Thyssen v. Davenport Ice Co., 134 Iowa, 749, 112 N. W. 177, 13 L. R. A. (N. S.) 572.

If the third party is shown to be incompetent or inexperienced or of such known negligent habits as to bespeak negligence in the mere selection of him to do the work in hand, then the master under well-known legal principles might well be liable as for his servant's negligence. Wherever the servant has express or implied authority to call in extra help, then the persons so called or employed become the servants of the master for whose negligence such master is liable. There are cases holding that the necessity of the thing sometimes supplies the lack of authority, and the master is held liable where the servant calls in extra help in case of emergency. None of these elements, however, are present in the instant case, and it is not claimed that any negligence of Ellis commingled or combined with that of Cleaver in causing this injury, unless it be the mere act of Ellis in substituting Cleaver for himself in doing the work defendant had committed to Ellis.

The authorities in this state are against holding the master liable under such facts. Thus it is stated in a memorandum opinion in Lindsay's Exec. v. Singer Manufacturing Co., 4 Mo. App. 571:

"Where one is employed by an agent...