Phelon v. Stiles

Park, O. J. The same principles of law apply to both of these cases, and therefore they will be considered together. The defendant claims that the court below has not found that Babcock was the servant of the defendant. We think there is no foundation for this claim. We construe the phrase, “ had in his employ one George H. Babcock,” as meaning that Babcock was in the employ of the defendant as a hired servant. [433] The principal question in the case is, whether Babcock in depositing the bags of bran intended for Mr. Smith by the side of the highway, and leaving them there until his return from Mr. King’s, where he went to deliver the bags of flour, was engaged in the business of the defendant in the regular course of his employment. The defendant was a flour and feed merchant, and it was his practice to deliver his merchandise at the residence of his customers. Babcock was employed to make delivery, and, on the occasion in question, started with his bags of flour and bran, sold by the defendant to King and Smith, to deliver them to these parties in the regular course of his employment. The question then is, was Babcock engaged in the defendant’s business while depositing and leaving* the bags by the side of the road? The defendant claims that those acts were performed by him on his own account; that he was desirous to take a train for Hartford later in the day, on his own private business, and that he left the bags by the i’oadside to enable him to make his delivery more rapidly and return earlier, so that he could accomplish his purpose. But what business of his own was he then doing ? He was not then attending to private business in going to Hartford. That was to be undertaken later in the day. He left the bags to expedite the delivery. Did it make the business his own because he despatched it more speedily than it would naturally have been done ? He was sent by the defendant to deliver the flour and bran. Did he do any thing else than deliver them ? His whole object in leaving the bran by the side of the road was to gain time. Suppose he had driven the horse with such speed as amounted to carelessness in order to gain time, and had injured a person by so doing, would he be transacting his own business while driving so rapidly, so that the defendant would not be liable ? Suppose he had left the bran out of consideration for his horse, and the same result had followed, would the defendant be excused ? He was under the necessity of taking the bran to Mr. King’s, or of leaving it by the side of the road until his return; suppose he had [434] taken the latter course without any special object in view, would it make any difference in the case? We think all that can be said of the matter is, that Babcock performed the defendant’s business in delivering the bran in a shorter time than he would have done, had he not intended to go to Hartford later in the day; and certainly the rapidity with which the business was transacted cannot operate to excuse the defendant. The defendant further claims that the bags, left as they were by the side of the road, became a public nuisance, and that the leaving of them was therefore a public offence, and that he can not be liable for such an act of his servant. But Babcock did not intend to create a nuisance. The case does not find that he intended any harm. All that can be said is, that he negligently left them while performing the business of the defendant, and for such negligence the defendant is, of course liable. We think there is nothing in this claim. We advise judgment for the plaintiffs. In this opinion the other judges concurred; except Foster, J., who dissented.