153 Minn. 488 | Minn. | 1922
The plaintiff, as administrator of his minor son, brings this action to recover for his death alleged to have been negligently caused by the defendants. When the plaintiff rested the action was dismissed as to the defendant American Linen Company. It proceeded against the defendant Thompson and resulted in a verdict in his favor. The plaintiff appeals from the order denying his motion for a new trial to which both defendants were parties.
The plaintiff’s intestate was a bright, active boy, 9 years old. The trial court carefully charged upon the rules determining the question of his contributory negligence. In the course of the charge it said this:
“The fact that he may not have the mature judgment of an adult will not exclude a child from exercising the degree of judgment and discretion, which he possesses, or for disregarding the warnings and orders of his seniors, and heedlessly rushing into known dangers.”
The portion just quoted is a part of a longer extract read by the court from 2 Dunnell, Minn. Dig. § 7029, and it paraphrases the holdings of this court. It correctly states the law in the abstract. The plaintiff objects to the portion referring to “disregarding the warnings and orders of his seniors and heedlessly rushing into known
At the close of the plaintiff’s testimony the court on the motion of the defendant linen company dismissed the action as to it. Thompson was in the employ of the company. He kept a family auto. He had an arrangement whereby he used his auto in his work for the company, his work being that of a solicitor or salesman, and the company furnished oil and tires used when in the service of the company or for his own purposes. He was returning from the company’s place of business to his home at the close of his day’s work when he ran over the child. The theory of the company’s motion was that he was not then in its employ so as to make applicable the doctrine of respondeat, and it was upon this theory that the court dismissed the action.
The defendant linen company was liable, if at all, upon the doctrine of respondeat superior. If Thompson was not liable it was not liable. The finding of the jury absolved Thompson from liability. To charge the linen company facts necessary to charge Thompson must be found; and the jury found that such facts did not exist. The necessary effect of the verdict is that neither defendant is liable. It is therefore immaterial whether the relation between Thompson and the linen company was such that it was liable for Thompson’s negligence upon the doctrine of respondeat superior and we make no unnecessary inquiry whether the jury could have so found. From this proposition of law the writer dissents. His view, while
Order affirmed.