Roney v. Aldrich

Follett, J.: The order not disclosing the grounds upon which it was granted, and no opinion having been Written, the grounds of the decision must be searched for in the record. At the close of the evidence, Aldrich, alone, moved for a nonsuit because a cause of action had not been proved against liim'; which was denied, and an exception taken. At the close of the charge he excepted to the direction that a verdict might be rendered against him. . We. think the new trial was granted on these exceptions,' for .two reasons: First. No other exceptions were taken upon the trial,- except to unimportant and not debatable rulings upon the reception- and rejection of evidence; which rulings were all common to both defendants. Second. The payment of costs by Aldrich was not required, which is the usual condition imposed when a, new trial is' granted for an error of the jury in rendering a verdict contrary to the evidence. (Bailey v. Park, 5 Hun, 41; Kelly v. Frazier, 27 id., 314; S. C., 2 Civil Fro. R., 322.) The record not disclosing that the motion was granted for errors of the jury, this court will presume that the court below followed this rule of practice, arid' granted the motion upon the exceptions. (Henderson v. Henderson, 2 Abb., N. C.; 102.) The verdict must be regarded as settling in plaintiff’s favor [322] the three important questions of fact: First. That defendant’s fence was negligently built. Second. That plaintiff’s horses were injured thereby. Third. That plaintiff did not, by negligent acts, contribute to their injury. This brings us to the question of whether Aldrich is liable for the damages caused to the plaintiff by the negligent construction of this fence; otherwise stated, was the evidence insufficient, as a question of law, to render him liable; or was there sufficient evidence to make the question of liability one of fact for the jury? Aldrich owned the farm, and as such owner was required by statute to build and maintain a just and equal proportion of the division fence. (1 R. S., 353, § 30, as amended in 1871 and 1872; 1 R. S. [7th ed.], 831.) He concedes that the owner of his farm was to build the part: of, the division fence extending east from the chestnut post (where-the-jury found the .-accident occurred), and it is pi’oved that such had' been the practice for many years. Ditchett v. S. D. and P. M. Railroad Company (67 N. Y., 425) does not hold that the occupant,, and not the owner, is charged by the above statute with the duty of1' building and maintaining division fences .as between adjoining owners. That case did not arise under this statute, or between adjoining owners, or between the occupants of adjoining properties ; but.it was an action by the administratrix of a traveler on a public-street,, who was killed by falling from the street into an excavatiom whichi had been previously guarded by a fence, but then out of repair. At common law, adjoining owners were not bound, as between-each, other,.to maintain division fences unless the right to compel' their-maintenance had been acquired by prescription, or by agreement; and the cases which arose before -the statute need not be .considered: The cases deciding whether a anas ter is liable for the negligence of his servant, or a landlord" for.- injuries sustained 'by third persons on leased premises, or whether the owner of land is liable for the negligence of a person who has contracted, to do .some act thereon, .are instructive, but not" directly in point, because-.none of these relations existed between’ Aldrich and Baldwin.. So similar are many of the border duties of' speciah agents and servants that it has been found impossible to draw- a line clearly separating one from the other; and though this-is. a., border., case, we are-of the [323] opinion that Baldwin must be held to have been the representative and agent of Aldrich in building the fence. Baldwin was not directed to use posts of any particular size, kind or strength; nor how far apart the posts should be set, nor how far apart, nor how high above the ground the wires should be strung, nor how they were to be secured to the posts. In these respects, which together, make up all there was to be done, he might, and did exercise his own judgment; and in these very respects the fence was negligently constructed. Aldrich is liable for this negligence of his agent. (Story’s Agency, § 452, and cases there cited.) But if it be held that Baldwin was the servant of Aldrich, in building the fence, the rule of respondeat superior, under which principals are liable to third persons for the acts of their agents, and masters, to third persons (not co-servants), for the acts of their servants, fixes the liability of Aldrich for the negligent construction of the fence. That Baldwin represented Aldrich in the capacity of agent, or servant, cannot, we think, be doubted. Aldrich owned the farm ; it was his duty to build the fence; he furnished the wire for it and authorized Baldwin to build it. ¥e have said that the relation of landlord and tenant did not exist, which we think cannot be seriously doubted, for it does not appear that Baldwin had the sole right to occupy or control this farm, to the exclusion of Aldrich, for any period of time; and it affirmatively appears that rent was , not paid, or agreed to be paid. These views lead to a reversal of the order, with costs. Hardin, P. J., and Boardman, J., concurred. Order reversed, with costs, and judgment ordered upon the. verdict.