11 Haw. 557 | Haw. | 1898
OPINION OF THE COURT BY
The plaintiff claimed damages $150 for the negligent driving by defendant’s servant, Hondo by name, of a horse and wagon against the plaintiff and his bicycle, thereby wounding the plaintiff and breaking his said bicycle. At the time of the damage aforesaid the defendant was carrying on the business of the estate of P. G. Oamarinos, deceased, as the administrator thereof, and the said Hondo as the servant of the defendant was then employed by the defendant to drive the said horse and wagon and was so driving the same in connection with the said business and for the purpose of assisting the defendant as his servant in carrying on the same. Hpon the trial of the cause in the District Oourt it was found that defendant at the time of the collision between the plaintiff and Honda, was carrying on the business — a fruit store- — of the estate of P. G. Oamarinos, deceased, as administrator thereof, and that Hondo
The question raised by the appeal is whether under the facts the defendant is personally liable. The defendant claims that he is not liable because the driver Rondo was not defendant’s personal servant, but a servant of the defendant in his representative capacity. The defendant’s counsel in their brief assert that defendant was not carrying on the business as a trader, but merely to preserve its good will, until such time as it could be sold, under the direction and by the authority of the probate court. We do not find this position supported by the pleadings or the proofs adduced below. This is a complete answer to the contention of defendant’s counsel that an administrator is only responsible for damages or injuries caused either directly by himself or indirectly by his negligence. Defendant was not winding up his intestate’s estate. Rondo was employed by the defendant and the alleged trespass was committed by Rondo while driving the wagon in the scope of his employment in the fruit store business. Defendant was his master. According to well settled law not disputed by defendant the master is responsible to third persons for injuries through the negligence of his servant while acting within the scope of his employment. This is so because every master is bound to employ servants that are both skillful and careful. So far as third persons are concerned Rondo was the servant of defendant.
In Plimpton v. Richards et al., executors, 57 Me. 115, the defendants were sued as executors of one Gardner and attachment was made of the goods and estate of the testator. The case was for damages caused by the defendant’s raising a dam in a stream whereby plaintiff’s mill was flowed. The dam and the land on which it was situated had, under the will, become vested in the executors and others. The court held that “the action was practically against the estate of Gardner, for if the defendants are rightfully sued as executors, the estate must be
The appeal is sustained and the judgment appealed from reversed. The case should be proceeded with against defendant as an individual upon its merits.