Guerin v. New England Telephone & Telegraph Co. ( 1899 )

The fact of the driving of the horse to Concord on the day of the alleged injury to him was not in controversy. The only issue upon this point was whether, under the agreement between the parties, the defendants had the right so to drive him. Such being the issue, the denial of the driver, "that he had driven the horse beyond where the men were at work and as far as Concord," should have been excluded. If it had any tendency to show that the contract was as claimed by the plaintiff, it was foreign to the scope of any authority the driver possessed, so far as appears or can be presumed, and must be understood to have been made in his individual, rather than his representative, capacity.

To make the declarations of a servant or agent binding upon his master or principal, they must be made by virtue of express authority, or be required by the due and ordinary prosecution of the business (Pemigewasset Bank v. Rogers, 18 N.H. 255, 259); but; "the mere circumstance of their having been made of and concerning the business he was employed in, does not give them any such effect, unless the servant had been instructed to make them, or unless they were so connected with the service that they became necessary in the due and effective discharge of it." Batchelder v. Emery, 20 N.H. 165, 167; Pemigewasset Bank v. Rogers, supra; Woods v. Banks, 14 N.H. 101, 113.

The facts furnish neither of these requisites. No express authority to make the declaration is claimed, and there is nothing tending to show that it was necessary in the due and ordinary prosecution of the business for which the declarant was employed. In. respect of the horse, it was no part of his duty to tell the plaintiff where he had been with him on the day in question, and his statement was inadmissible as against the defendants, either as an admission or as a part of the res gestae, or for any purpose except unjustly to prejudice them. Authorities, supra; Nebonne v. Railroad,67 N.H. 531, 532; Ordway v. Sanders, 58 N.H. 132, 133; State v. Wood,53 N.H. 484, 494; Morrill v. Foster, 32 N.H. 358, 360; Wiggin v. Plumer,31 N.H. 251, 267; Patten v. Ferguson, 18 N.H. 528, 529; Hadley v. Carter,8 N.H. 40, 43.

Upon the facts appearing in the case, no reason is perceived why the plaintiff was not properly allowed to testify to the amount of damage resulting to him from the loss of the horse's service. Such loss of service was apparently the natural consequence and proximate result of the wrong complained of, and constituted one of the proper elements to be considered by the jury in their assessment of damages, under suitable instructions from the court, which it is our duty to presume were given in the absence of any evidence to the contrary.

Verdict set aside.

PIKE, J., did not sit: the others concurred.