133 A. 4 | N.H. | 1926
Lead Opinion
It was the defendant's custom to carry home employees taken sick while at work, but no claim is understood to be made that the custom showed any agreement for its observance so as to make it a term of the contract of employment, the validity of which made it a duty of the defendant to render the service. Without such duty it could in no event be maintained that the employee so served and the driver of the employer's conveyance are fellow servants. And even if the duty thus exists, it would seem ineffective to produce such relationship. While cases hold that when the employer by the contract of employment furnishes transportation to the employee in going to and from and about his work, the latter and the driver of the conveyance are fellow servants, it is on the theory that while so transported the employee is giving attendance to his duty and engaged in an incident of his employment. Kilduff v. Railway,
Assuming the undertaking was gratuitous and admitting the duty to use due care in such an undertaking, the defendant urges that in view of its gratuitous character the undertaking required care only in furnishing a suitable vehicle and competent driver.
The advent of the automobile has resulted in frequent situations where an invited guest is injured by the negligence of the owner's servant as the driver of the automobile. While there is some conflict, the weight of authority enforces the doctrine of holding the owner responsible for such negligence. No case in this state has heretofore presented the situation, but it is said in Dearborn v. Fuller,
The duty to use care in rendering a service arises not from a right to receive the service, but from the relation between the parties which the service makes. The relation being established, the legal incidents pertaining to it follow. The right to receive care being premised, it is not ordinarily lost by delegation to others of the performance of the service, and the relation between the parties is unaffected by the assignment of the undertaking to one's servant. The maxim of respondeat superior rests on this basis. "The plaintiff in the suit against the master must establish a relation of the master to him. He cannot do this by showing the master's presence, for he was absent; nor can it be proved by authority conferred, for none was given. It can only be shown by resorting to the legal fiction that the act of the servant was that of the master." McNamara v. Chapman,
But it is argued that although this is the general principle, yet it is subject to qualification, because no reasonable man in rendering a gratuitous service would assume responsibility for the negligence of his servant assigned to execute the service. The logical fallacy of the argument lies in failing to distinguish between what is voluntarily *271
assumed and its legal consequences. While one may have choice of action, action taken is subject to the law governing it. When it is said that one who enters upon an undertaking assumes the legal duties relating to it, what is really meant is that the law imposes the duties on him. A contract is not a law, nor does it make law. "It is the agreement plus the law that makes the ordinary contract an enforceable obligation." Stanley v. Kimball,
Nor is argument for abridgment of liability supported on grounds of policy and expediency.
To say that one who renders a gratuitous service should assume responsibility only in making proper arrangements, but not in the actual performance of the service except in so far as he acts in person, because no reasonable man would assume such an undertaking on any other basis, seems a defective argument to show the expediency of such a rule, in two respects. It is not a matter of common knowledge that the ordinary man would so limit his action in all cases; and as a matter of "fundamental justice and reasonableness" (Cavanaugh v. Railroad,
Differences in the legal standard of care are not called for by differences in the occasion for the creation of the relation, nor are *272 differences in the application of the rule making the master responsible for his servant's defaults dependent on the facts leading to the relation, with the single exception of cases of common employment. Reasonable justice in these respects is better attained by uniformity of principle than by distinctions. Inequality of circumstance is better dealt with as matter of fact than by legal rules.
The present case, where the decedent appears to have accepted the invitation with some reluctance after being urged, where her condition naturally invoked help, where the object of the journey was serious and important, and where the defendant made it its business to see that she was given aid, as compared with a case where the service is due as a legal obligation, well illustrates the reasonableness of a common measure of liability. If men in general would use less care in one situation than in the other, it is a question of fact for the jury. It cannot be said to be common knowledge that they would.
The service being assumed, the plaintiff was entitled to receive due care in being taken home, not only in means but in manner as well. It was important that she should be taken home in safety, and care in her travel included the conduct of the travel as well as the arrangements for it. Responsibility for actual performance of the service was as much called for as responsibility for its preparation. The duty of preparation, in furnishing a suitable vehicle and competent driver, may or may not be performed by servants. The duty of execution, in furnishing safe conduct, likewise may or may not be performed by servants. Responsibility for care in the observance of the duties is called for as to each. The defendant's contention amounts to a proposal to apply the fellow servant doctrine to gratuitous undertakings. The doctrine has no such intrinsic merit as to warrant it. The demand for responsibility in relations with others for the proper conduct of one's undertakings invites no such narrowed scope. Both reason and justice lead to the conclusion that the master in rendering a gratuitous service to a third person is liable for the negligence of his servant in performing the service.
Even in the absence of a right by virtue of her employment to be taken to some suitable place, the decedent was more than a licensee. She was in the car by invitation rather than permission. And even as to licensees there is a duty "to give reasonable information as to existing conditions that are not open to observation, and to otherwise refrain from negligent conduct." Locke v. Payne, *273
Cases holding an employer not responsible for the negligence of doctor furnished by him if due care in engaging a competent doctor is used are readily to be distinguished, as a doctor is not the employer's agent or servant. He is not under direction or control in the manner he does his work, but is his own master. Conversely, as suggested in Burnham v. Stillings,
There remains to be considered the sufficiency of the evidence to show that the driver was negligent, and that, if he was, his negligence bore causal relation to the decedent's death. If the driver was negligent, it was in leaving the decedent to go home unattended. It may perhaps be rightly claimed that he was justified in driving the car no farther than he did. The road was covered with water, and while there was evidence of its passable condition, the evidence does not show that he knew it. The situation did not readily disclose that a safe passage through the water obtained. But if the water made an apparent barrier to travel by automobile, the duty to use care in getting the decedent to some suitable place was not thereby released. The driver had a sick woman on his hands, and the defendant's undertaking remained unfinished. The undertaking was to give her reasonable attention and assistance to enable her to reach her home in safety. It was for the jury to say whether the decedent discharged further prosecution of the undertaking when the travel by automobile ended, and if not, whether care was then exercised.
The contention that there was no evidence of causal connection between the alleged negligence and the decedent's death requires preliminary consideration of the exception to the medical testimony. Certain hypothetical questions were asked of medical experts, who testified in answer that in their opinion the decedent died of heart trouble caused by overexertion. The questions assumed no facts of which evidence was lacking, but the objection is made that any *274 positive conclusion from them was necessarily conjectural, and argument is made that because the symptoms of the decedent's sickness did not disclose the cause of it, her death would as probably as not have occurred when and as it did regardless of the alleged negligence as a contributing cause. In other words, it is claimed the evidence was as consistent to show the fatality of her sickness without the additional effect of the negligence as with it, and hence only showed that "her time to die had come."
If it is a requisite of causal relation "that the damage would not have occurred just the same, if defendant's tort had not been committed" (XXV Harv. L. Rev. 314, n.), the evidence here does not necessarily invoke its application. Proof that the decedent had a fatal illness was not conclusive, while the testimony of the experts had some tendency to prove that overexertion by the decedent in her condition as disclosed was likely to cause death. There being evidence of the defendant's negligence as the cause of the overexertion and of the overexertion as the cause of death, and no other cause of her death being conceded or conclusively proved, it was for the jury to pass upon it, and the evidence excepted to was properly received. "The rule of Deschenes v. Railroad,
There was evidence that death was caused by overexertion rather than anything else, because the evidence of overexertion was sufficient, and if there was sufficient evidence of any other cause, "the case is not one of a choice between two or more probable causes conceded to exist, but involves merely the power of the jury to determine as matter of fact the non-existence of the causes which the defendant claimed, if existent, would render the cause of death doubtful." Boucher v. Larochelle, supra, 434, 435.
The probable duration of the decedent's life but for the negligence would be a consideration in connection with damages if the defendant's liability for her death should be found. If her sickness was fatal, and the defendant's negligence hastened her end, it would affect the amount of a verdict for the plaintiff but not the right to it. The defendant's right to a verdict does not follow merely because its negligence may have been ineffective in consequences, *275 but so far as consequences capable of inference from the evidence are found, it is liable.
The husband's action cannot be maintained. At common law "the death of a human being cannot be complained of as an injury." Baker v. Bolton, 1 Camp. 493. The rule has been adopted here in a suit brought by the widow of the person killed (Wyatt v. Williams,
New trial of first action. Judgment for defendant in second.
PEASLEE, C.J., and BRANCH, J., did not sit: the others concurred.
ON REHEARING. After the foregoing opinion was filed, the defendant moved for a rehearing upon the question of its duty of anticipation.
Addendum
The defendant urges that in leaving the intestate to go home unaided it had no notice, or reason to anticipate, that harm would be done. It claims that its only notice was of a sick headache, which indicated no need of aid.
If judicial notice may not be taken of the fact that a sick headache is not an original source of trouble but derivative from other trouble, it may at least be found that it would inform ordinary men as a symptom of some trouble which might be so serious as to make walking unaided unsafe. The headache was severe enough to induce the foreman to have the intestate taken home, and when she objected, he insisted on his opinion that she had better go. On the way she was so sick as to require the driver to stop in order to obtain relief. There was accordingly notice of an abnormal condition, although not of its nature and character. Something was the matter with her, which might or might not be serious, and which might or might not make her travel unaided unsafe. Knowledge to that extent might be charged to the defendant. Its ignorance of the nature of *276 her trouble was some notice that it might be serious and that leaving her to go home unaided might result in injury. Some probability of such result might be found.
". . . `The question is not whether the damage was foreseen or foreseeable, but whether it in fact resulted as a direct consequence of the defendants' act.' . . . Upon the question whether the defendant has been guilty of negligence, the rule of reasonable anticipation applies . . . But when his guilt has been established, the rule has no application upon the issue of damages." Bowley v. Duca,
For a person to be careless it is not necessary that damage as more rather than less probable result should be anticipated. "As form and expression of due care, anticipation is a precautionary consideration of what may happen in a situation for which the party is under responsibility. . . . Anticipation is not confined to expectation." Kenney v. Len,
One may be careless because he fails to guard against consequences which are probable only under conditions as to the existence or absence of which he is in ignorance. In Guevin v. Railway,
While "the likelihood or unlikelihood of a future happening is the turning point" as the test of duty to anticipate (Derosier v. Company,
Whether, in the discharge of the undertaking to take the intestate home, ordinary men would see that she was aided in completing her journey under the circumstances, is accordingly an inquiry of fact which the evidence is sufficient to determine affirmatively. If there was likelihood of injury, the duty to use care was not discharged merely because there was a greater unlikelihood of it.
It is true that the intestate voluntarily took the walk unaided. If it was because the driver refused to take her any farther, it would not alter the negligent character of such refusal. If such conduct on her part could be considered negligent, it would not meet the question of the plaintiff's right to go to the jury on the issue of the defendant's care as well as the intestate's. It does not appear that she must have gone home "on her own initiative," in the sense that she was not left by the driver's conduct to her own resources. That the driver did so leave her, and that he was negligent in so doing, may be found.
The defendant's undertaking being to help her home, the undertaking was not necessarily accomplished by leaving the intestate at the foot of the stairs at her home rather than at a place of repose in her home. And if helping her home by conveyance included no incidental aid from the vehicle into her home, her walk on the road might be found a part, if not all, of the overexertion which brought about, with or without other causes, her death. If the climb upstairs was the only overexertion, it would not be unreasonable to say that it was made so by the walk.
Former result affirmed.
PEASLEE, C.J., and BRANCH, J., did not sit: the others concurred. *278
