Niemi v. Railroad , 87 N.H. 1 ( 1934 )

The motions for directed verdicts at the trial, being general, raised the issue of the right to them either by reason of an insufficiency of evidence for the plaintiffs or of conclusive proof of a good defence. Williams v. Duston, 79 N.H. 490, 491; Dwyer v. Insurance Co., 72 N.H. 572, 576. Neither the course of the trial nor failure to except to the charge affected the standing of the motions. If they had merit, submission of the cases to the jury on any ground was error. The exceptions to the denial of the motions saved for transfer to this court the right to a determination of the correctness of the denial with no limitations of consideration. Not one of the cases cited by the plaintiffs holds to the contrary.

The plaintiffs' chief argument is that the negligence of the driver the automobile should not bar its owner from recovery as a statutory beneficiary.

The driver's conduct was chargeable to the owner. What he did she did. If she did not in fact direct his operation of the car, yet he was under her direction. He was her agent and his mind and hands were the same as her own under the rule of responsibility for an agent's conduct. Assuming that she owed her children the duty of care towards them (see Dunlap v. Dunlap,84 N.H. 352), she violated the duty and was liable to them for her agent's wrong as though it were committed by her personally. It was her wrong in every legal sense as much as the driver's. If living, the children would have a choice between suing either parent. Their causes of action surviving them remained alternative. Those against the mother were as good as those against the father. The statutory assignment of the causes could therefore place her in no better position in respect to them than that in which he was placed. If liability was lacking because of the relation of parent and child, yet there was contributory fault, in the sense of careless conduct towards the children, which was chargeable equally to either parent. The principle that the mother should not enjoy the benefit of an injury to which her carelessness contributed extends to conduct of her agent as well as her own. Page v. Hodge, 63 N.H. 610; Dimock v. Lussier, 86 N.H. 54, 56; 20 R.C.L. 148; Sherm. Red., Neg. 6th ed., s. 65. Because of her agent's contributing fault she could not recover from the defendant for her own injury, and the reason is equally forceful to bar her from receiving benefit on account of her children's injuries. Since the driver may not recover as a beneficiary, consistency with the general rule of responsibility for an agent's conduct demands that the owner also may not.

In accord with the general rule many cases hold the parents barred when a caretaker's negligence has concurred with that of the defendant. They are cited in notes in 32 L.R.A. (N.S.) 410 and 23 A.L.R. 655. The caretaker's negligence is not imputable to the child, but when he is appointed by the parents to assume in some measure the functions of parental authority and is subject to their direction and control, he is their agent. Their chargeability for his negligence follows under normal principles of agency. While it is said in Newman v. Company, 52 N.J.L. 446, 448, that the "custodian is the agent, not of the infant, but of the law," the statement has reference to the relation between custodian and child and not to that between custodian and parent. When it is not a matter of judicial order, one engaged to tend a child has charge of an interest of the engaging parents. The caretaker's negligence is theirs because he is acting for them in their place.

The statute indicates no distinction in respect to contributory fault between that of a beneficiary personally and that of his agent.

The motion invites no further discussion.

Former result affirmed.

All concurred.