Opinion
Decided January 4, 1938.
The owner of a truck is not liable upon the principle of respondeat superior for its negligent operation by one to whom the driver had no authority to delegate the performance of his duty. Whether a party is entitled to be relieved from an agreed case may be raised only upon petition to the Superior Court.
CASE, for negligence. The facts are stated in the following agreement: "Counsel in the above entitled action agree; that the defendant was the owner of a truck, loaded with cattle belonging to Shonyo Brothers of Lyndonville, Vermont, which, while on the way from said Lyndonville to Boston, Massachusetts, on the morning of March 14, 1935, at about 6:30, while proceeding southerly on Concord Street in the City of Nashua, . . . went off the road, injuring the plaintiff, a pedestrian, and causing him damages to the amount of $3,500; that Henry Lapierre, a licensed operator and an employee of the defendant, was in charge of said truck and was supposed to be its driver; that Gerald Boardman was an employee of said Shonyo Brothers, and was accompanying his employer's cattle to market; that said Boardman held no license to operate motor vehicles; that Lapierre became sleepy and turned the operation of the truck over to Boardman, and went to sleep in the cab; that while Boardman was driving the truck, and while Lapierre was asleep, the accident occurred; that subsequently Boardman was before the Municipal Court of said Nashua, and pleaded guilty to operating without a license."
If upon the foregoing statement of facts the plaintiff would be entitled to go to the jury, he is to have judgment for $3,500; if not there is to be judgment for the defendant. Transferred by Young, J. without a ruling.
Karl E. Dowd (by brief and orally), for the plaintiff.
Thomas J. Bois, Ivory C. Eaton and Robert E. Carter (Mr. Carter orally), for the defendant.
Since Lapierre had no authority to delegate the performance of his duty as driver of the truck, the defendant cannot be held liable on the principle of respondeat superior. Jewell v. Railway, 55 N.H. 84; Clough v. Company, 75 N.H. 84.
The case of Grant v. Knepper, 245 N.Y. 158, on which the plaintiff relies, is inapplicable. There are here no facts from which it could be found that Boardman, though unlicensed, was not a competent driver or that Lapierre knew, or even ought to have known, that he had no license. Furthermore there is no evidence that the accident was caused by Boardman's negligence or incompetence (if he was incompetent) and no evidence that Lapierre, even if he had been awake and vigilant, could have avoided the accident. See Grant v. Knepper, supra, 164.
Whether the plaintiff is entitled to be relieved of his agreement "is a question primarily of fact and may be raised only by petition to the Superior Court." Venus Shoe Corporation v. Company, 88 N.H. 478, 479, and cases cited.
Judgment for the defendant nisi.