Opinion
No. 4568.
Argued May 7, 1957.
Decided June 28, 1957.
1. Where a motion for a nonsuit is made upon an opening statement which sets forth all material facts of which evidence is to be presented, the statement is to be treated as though the evidence had been introduced and will be construed most favorably to the plaintiff.
2. The act of the defendant company in ordering its employee to direct the operator of a trailer unit, owned by a foreign supplier of produce to which an order had been placed by the defendant for one of its customers, to the residence of the customer and assist in the unloading, in the local transit of which injury resulted to the plaintiff as the alleged result of the foreign supplier operator's negligence, did not subject such operator to the direction and control of the defendant and hence the operator could not be found to be its agent.
CASE, for negligence to recover damages suffered by the plaintiff on February 8, 1955, at Winnisquam when a number of bales of hay becoming loose from a trailer truck proceeding in the opposite direction fell upon her motor vehicle causing property damage to her motor vehicle and personal injuries.
After the plaintiff's opening statement the Court (Leahy, J.) transferred without ruling the question of whether or not at the time of the accident the driver of the hay truck was the agent of the defendant.
On the day of the accident at about 11:30 A. M. the plaintiff was traveling north toward Laconia on Route U.S. 3 in Winnisquam. Proceeding up an incline just south of a railroad overpass plaintiff observed at the far end of the overpass the top of a large truck loaded with bales of hay approaching from the, opposite direction. It was agreed that the speed limit at that point was 25 miles an hour. As the front of the tractor trailer came into full view around a curve she noted that the hay was swaying, the vehicle was over the yellow line and exceeding the speed limit. She pulled off the road as far as possible close to a snow bank and stopped her car with the right wheels off the road. As the trailer approached she observed a rope fly into the air and bales of hay began hurtling off directly at her car, some of them striking the vehicle and at least one going through the windshield, breaking the steering wheel. Forty or fifty bales were strewn along the road.
One Dearborn of Sanbornton ordered a quantity of hay from the defendant, who, in due course, purchased it in Quebec, Canada. The hay, consisting of about 150 bales weighing 13 tons, was transported in a tractor trailer (not owned by the defendant) driven by one Gevry to the defendant's place of business in Laconia. The load was secured by ropes running over the top of the load but there were no ropes on the sides. Upon arrival at the defendant's store the load was not inspected. An employee, one Maxfield, was directed by the manager to go with Gevry and show him the way to the Dearborn farm and assist in unloading. They proceeded on their way to the point of the accident. Defendant's manager, Mr. Main, was called to the scene and took charge of the situation. He ordered that the hay remaining on the truck be delivered to Dearborn and that discharged onto the ground to another person.
Bernard I. Snierson and John P. Chandler (Mr. Chandler orally), for the plaintiff.
Wiggin, Nourie, Sundeen, Nassikas Pingree and Peter J. Bourque (Mr. Bourque orally), for the defendant.
"When a motion for a nonsuit is made upon an opening statement which sets forth all the material facts of which evidence is to be presented, the statement is to be treated as though the evidence had been introduced. The inquiry then is whether upon that evidence there is a case for submission." Charpentier v. Company, 91 N.H. 38, 40; Taylor v. Jewell, 98 N.H. 331, 332. In passing upon defendant's motion for nonsuit, the Court must consider the evidence as true and consider all the evidence most favorably to the plaintiff. Leonard v. Manchester, 96 N.H. 115.
The decisive inquiry here is whether the defendant, through its agent Maxfield, had any control over Gevry in the operation and management of the trailer truck, which admittedly was not the property of the defendant. The defendant ordered the hay in Canada and was later to bill it to Dearborn, the ultimate user. Upon arrival at defendant's plant the manager ordered an employee to direct the driver to its destination and assist in unloading. After the accident the defendant's agent assumed control of the hay to the extent of directing that part of the load spilled in the highway be delivered to a party other than Dearborn.
The cases of McCarthy v. Souther, 83 N.H. 29, and Hutchins v. Insurance Company, 89 N.H. 79, are authority for the proposition that a master is liable for the torts of his servant only if the master had control over the servant in the management and control of his (the servant's) automobile. This court has heretofore declined to follow the majority rule which imposes liability on the master when it appears at the time of the accident the employee was using his own automobile with the consent of the master either expressed or implied. 140 A.L.R. 1152-1157; 28 Mich. L. Rev. 365; 32 Mich. L. Rev. 276.
This court intimated (Ross v. Express Co., 100 N.H. 98, 102) that under certain circumstances ". . . the requirement of control with respect to the details of the operation of an automobile should be dispensed with as a prerequisite to liability." While confirming what we said in the Ross case we nevertheless believe, assuming the truth of the facts as stated by plaintiff's counsel, and interpreting them most favorably to the plaintiff, that the driver could not be found to be subject to the direction and control of the defendant and therefore could not be found to be its agent. Whether the defendant could be held liable on other grounds (see Nashua c. Paper Co. v. Noyes Co., 93 N.H. 348, 350; Prosser on Torts (2d ed.) 358) is a question not presented by the transferred case.
Remanded.
All concurred.