Leonard v. North Dakota Co-Op. Wool Marketing Asso. , 72 N.D. 310 ( 1942 )

I am unable to agree with all that is said in the foregoing opinion and therefore dissent.

The jury were instructed on two theories under either of which they may have returned their verdict. This instruction, challenged by appellant, reads: "Further, in connection with this matter of employment I instruct you that where a servant employed to drive the car of his master directs or permits a stranger to operate such car in the master's business and in the presence of the servant, the master may be held liable for its negligent operation upon the grounds that such operation was, in fact, the servant's operation; or, that where the servant employed to operate the automobile selects the stranger to drive the car in his place upon the express or implied permission or direction of the owner thereof, the liability for the negligent operation of the automobile may be fastened upon the owner by reason of the consent or permission of such owner, if the servant is then and there in the course and scope of his employment and is present at the time of such operation."

The first part of the instruction is predicated on the theory of "constructive identity" or "vicarious responsibility," the latter part on the theory of express or implied permission or direction on the part of the defendant. I take no exception to the latter, but, notwithstanding what is said in the case of Ulman v. Lindeman,44 N.D. 36, 176 N.W. 25, 10 A.L.R. 1440, I cannot agree that the instruction on the theory of constructive identity was a proper one. I think this theory is illogical and wholly inconsistent with the principles of the law of agency. It seems to have originated in an early English case and was later applied in the case of Booth v. Mister, 7 Car P 66, 173 Eng Reprint 30. In this country it was followed in the early leading case of Althorf v. Wolfe, 22 N.Y. 355, where what is said in Booth v. Mister is quoted with approval. And it is on the authority of these cases that the doctrine where approved in American jurisdictions is largely predicated.

Mr. Labatt, in his work on Master Servant, 2d ed, Vol. 7, § 2516, has this to say concerning the English cases touching this matter: "Among the precedents relied upon in a case decided about a century ago was an unreported decision which proceeded upon the theory that a master might be held responsible for the negligence of a stranger employed by a servant having no power to create any contractual relationship between him and the master. That theory also finds some support in a ruling made by Lord Abinger in a nisi prius case (Booth v. Mister). But these authorities are inconsistent with the more recent statements of the law in England and Ireland."

And in the same section, after commenting on the case of Althorf v. Wolfe, he "ventures to express the opinion that the decision, in so far as it rests upon that doctrine, is an extremely unsatisfactory one." And in Mechem, on Agency, 2d ed, § 1867, it is said: "The limits of this doctrine must be narrow; it can probably be applied only when the servant is actually directing and controlling the act, and so personally and immediately in charge that the act of the third person may fairly be regarded as the act of the servant."

Many of the cases approving the doctrine of constructive identity also cite the Minnesota case of Geiss v. Twin City Taxicab Co. 120 Minn. 368, 139 N.W. 611, 45 LRA (NS) 382. The court there said: "We approve the rule that, when the master intrusts the performance of an act to a servant, he is liable for the negligence of one who, though not a servant of the master, in the presence of his servant and with his consent negligently does the act which was intrusted to the servant. A clear application of this rule is found in the model opinion in Booth v. Mister, 7 Car P 66, 173 Eng Reprint 30. . . ."

But the Minnesota court later in the opinion says that the facts in the case sufficiently show negligence on the part of the servants "in abandoning the duty imposed upon them by the master, and bring the case under the doctrine applied in Setterstrom v. Brainerd N.M.R. Co. 89 Minn. 262, 94 N.W. 882, which, indeed, seems really to be not different from the rule of Booth v. Mister and Althorf v. Wolfe." An examination, however, of the Setterstrom Case discloses that that was a case where the head brakeman of a train on the defendant's railway put a stranger in his place and the latter's neglect contributed to and was the cause of the resulting collision. The court in the syllabus, after stating the facts, said: "That whether the head brakeman was negligent in abandoning his post of duty and selecting a substitute to take his place was a question for the jury."

And in the opinion said: "We may not, upon the record before us, lay down any precise rule of duty that should have governed the jury in passing upon the relations of Hart's (head brakeman) acts to plaintiff's injury, for the trial court disposed of the case upon the theory that, no matter how negligent he was in putting another person in his place when he should have been there himself, without reference to the connection between such acts and the accident his conduct in that regard would not authorize a recovery. But we are very clear that the issue whether Hart was negligent was a question upon all the facts and circumstances attending his abandonment of his post of duty, and the putting of another person in his place without authority might have been a proximate cause of the injury, which should have been submitted under proper instructions, and the failure to do so makes it necessary that a new trial should be ordered."

An examination of the authorities which are cited as approving the doctrine of Booth v. Mister, discloses that often there is uncertainty as to the bases of their holdings and that, in many instances, the real ground is that there was negligence on the part of the servant in putting a stranger in his place.

In § 241, Vol. 1, of the Restatement of the Law of Agency, the rule is stated thus: "A master who has intrusted a servant with an instrumentality is subject to liability for harm caused by its negligent management by one to whom the servant intrusts its custody to serve the purposes of the master, if the servant should realize that there is an undue risk that such person will harm others by its management."

And in paragraphs d and e of the Comment under the section it is said:

"d. If the servant surrenders custody of an instrumentality in order that a private purpose of his own or of the one to whom he gives custody may be accomplished by its use, the master is not liable for subsequent injuries. In this case the situation is the same as if the servant were to use the instrumentality for his own purposes, except that the transfer of possession to another makes the departure from the employment more clearly marked.

"e. A servant, while remaining with the instrumentality, may surrender its immediate control to another, as where the driver of a truck permits a boy to drive it. Although such surrender is not negligent, the master remains subject to liability for any negligence of the employee in supervising the conduct of the other. However, in the absence of negligence by his servant the master is not liable for any casual negligence of the other while under the supervision of the servant."

On the facts in this case the jury may have returned their verdict under either of the theories on which they were charged in the instruction above referred to, so it is impossible to say under which they found for the plaintiff. Accordingly, I think there should be a reversal. See McLeod v. Simon, 51 N.D. 533, 200 N.W. 790.

BURKE, J., concurs in the foregoing dissent.