Reaume v. Newcomb

Grant, J. (after stating the facts). The court should have directed a verdict for the defendants. Westcott was not in the employ of the defendants at the time of the accident, and what he did was entirely outside the scope of his authority. His employment lasted only from the time that he received his horse and wagon at the stable until he had delivered him back again at the stable into the possession, control, and care of Mr. Pierce, the [140] stable keeper. The horse which was ridden was not the one he drove. Pierce alone was responsible for the boy’s act in riding the horse. Defendants did not authorize or permit him to employ the drivers for any such purpose. Hundrecls and thousands of men are employed to work a portion of the day for one employer, and are at liberty to work the balance of the time for others or for themselves. If this boy had been permitted by Pierce to take the horse and wagon on business for himself or for Pierce outside of the delivery hours, defendants would not be liable for any negligence of the boy, because it would be without the scope of the authority of either Pierce or Westcott. That the act to be done by the boy might possibly result, or was intended to result, in benefit to defendants, is not the test of authority. The act must be within the scope of his employment, in order to render his employer liable. The rule as stated by text writers is as follows: “The act causing the injury must have been one within the scope of the authority which the servant had from the master, or which the master gave the servant reasonable cause to believe that he had, or which servants employed in the same capacity usually have, or which third persons have a right to infer from the nature and circumstances of the employment.” 1 Shear. & R. Neg. (4th Ed.) § 148. Complaint is made that counsel for the plaintiff, in their argument to the jury, used language not justified by the record, and prejudicial to the rights of the defendants. If the case were not reversed upon the principal question in the case, we should be compelled to consider these remarks. We think they were unjustifiable. But, inasmuch as they are not liable to occur upon a new trial, should one be had, we refrain from their discussion. Judgment reversed, and new trial ordered. The other Justices concurred.