Roby v. Reed , 39 N.H. 461 ( 1859 )

Doe, J.

It is not disputed that the plaintiff, at the time of the alleged trespass, was the owner, and had the constructive possession of the horse. The plaintiff’s evidence tended to show that Reed, as the servant of Osgood, and with her concurrence, turned the horse into the highway. The phrase, “as the servant of Osgood,” implies that in the act of turning the horse into the highway, Osgood was principal and Reed agent, and the act of Reed, being with her concurrence, was their joint act. Those authorities, therefore, which hold that a master and servant are not jointly liable in tort for the negligence of the servant in the master’s absence, are not in point, the ground of those authorities being that the negligence is not joint, and that for such negligence the servant may be liable to the master for the damages which the master may be compelled to pay; and if the master should satisfy an execution against them both, as joint wrong doers, he could not call on the servant for reimbursement.

The justification set up is, that the horse was wrongfully in the close of Osgood, and that Reed, as her servant, turned him into' the highway. If the horse was wrongfully in the close of Osgood, the defendants were justified, and the only question is whether the horse was wrongfully there.

It is immaterial that the horse did not escape from the pasture till five days after the fence was taken down, because it does not appear that Fellows knew, or that, by the exercise of ordinary care and diligence, he would have known that the fence had been taken down. If Fellows had known that the fence was left insufficient by Reed, there might be good reason to hold, as against Fellows, that he should have repaired it within a reasonable time, and that he could not throw upon Osgood the burden of always maintaining his fence, merely because she was once liable for a trespass in taking it down. But Fellows does not appear to have been in any fault.

The evidence was conflicting upon the question whether Reed replaced the fence in as good condition as he found it; but the jury must have found, under the instructions of the court, that the horse escaped from the pasture where he rightfully was, into the adjoining close of Osgood, through the fault of both the defendants in taking down and not replacing a good and sufficient division fence, which Fellows, the owner of the pasture, was bound to maintain. It could not be said that the horse would have been wrongfully in Osgood’s close if he had been there on account of the neglect of Osgood to build a fence which she was bound to maintain. Neither can his being there be considered wrongful, as to the defendants, when it was owing to a defect in Fellows’ fence caused by them. If the horse was there by the wrongful act of the defendants, without any fault of others, it would seem to be immaterial what that wrongful act was. If the defendants had led or driven the horse into Osgood’s close, it would not be for them to say that he was wrongfully there; at least, not until the plaintiff or Fellows had notice, and an opportunity to take him away. Causing a defect in Fellows’ fence was a wrongful act of the defendants; the jury have found that the horse was in Osgood’s close by reason of that act, and the defendants are as responsible for his being there as if they had diflven him there. To allow them to say he was wrongfully there would be to permit them to take advantage of their own wrong.

It is objected that no evidence is reported in the case to show that Osgood was responsible for the act of Need, in causing the defect in the fence, and that, therefore, so far as she is concerned, the horse was wrongfully in her close. But the agreement of the parties, stated in the case, was evidently not intended to make such a distinction between the liability of Osgood and the liability of Need, for it does not provide how the action is to be disposed of, if it can be maintained against one and not against the other. The jury have found that the defect in the fence was from the fault of both defendants, and doubtless there was evidence to that effect.

Judgment on the verdict.