Medeiros v. Honolulu Motor Coach Co.

  The defendant Honolulu Motor Coach Company, Limited, is a
public carrier of passengers and in that capacity operates motor
coaches between Honolulu and Schofield. On August 31, 1936,
shortly before midnight, it dispatched one of its
thirty-passenger coaches fully loaded from Honolulu for Schofield
in charge of one John Carvalho, one of its regularly employed
drivers. Shortly after leaving Honolulu Carvalho permitted two of
his friends, Henry Kaipo, Jr., and Fred Lewis, to board said
coach as his guests for a ride to Schofield. They and one
passenger occupied the front seat with the driver. These friends
soon observed that Carvalho had been drinking and was feeling
rather "high," whereupon Kaipo took the wheel.
  The circumstances under which Kaipo took the wheel are related
by both Kaipo and Lewis. Carvalho was not called as a witness.
Their evidence is to the effect that they suggested to Carvalho
that it would be best for him to let Kaipo drive and that he
thereupon surrendered the wheel to Kaipo and took Kaipo's place
on the front seat of the coach. Kaipo further testified that he
was a licensed public chauffeur, that he was not an employee of
defendant and that he himself had been drinking that evening and
had drunk about five drinks of beer during the evening, the last
one being about one hour before the accident hereinafter referred
to.
  While proceeding on their way toward Schofield with Kaipo at
the wheel and Carvalho on the front seat with

him a Plymouth sedan, owned by plaintiff and used in his taxi
business, passed the coach which Kaipo was driving somewhere
between Oahu Prison and the bridge upon which the accident
occurred. The road approaching the bridge is a three-lane road
and narrows to two lanes on the bridge. The sedan, after passing
the coach, fell in behind a slow-moving army tractor then
crossing the bridge and either overtook and collided with the
tractor and was suddenly stopped, whereupon the coach driven by
Kaipo crashed into the rear of the sedan, or was first struck by
the coach from the rear and hurled into the tractor. The evidence
is conflicting as to whether the Plymouth first collided with the
tractor or was first hit by the motor coach and hurled into the
tractor by the impact but there is no conflict in the evidence as
to the Plymouth sedan being badly damaged. The owner of the
Plymouth sedan sued the Honolulu Motor Coach Company, Limited,
for the damage to and loss of the use of his sedan, alleging
negligent driving and operation of defendant's motor coach by
John Carvalho, servant and agent of defendant.
  At the trial before a jury and at the close of the evidence the
defendant moved the court to instruct the jury to return a
verdict for the defendant on the ground that it affirmatively
appeared from the evidence that the driver of defendant's bus was
not an employee of the Honolulu Motor Coach Company, Limited, and
not operating within the scope of his employment. The court
overruled the motion, stating that a consideration of the
question of law involved would unduly delay submission of the
case to the jury and suggested that in the event of a verdict in
favor of the plaintiff the defendant could present the question
of law on a motion for judgment notwithstanding the verdict.
Counsel for the defendant agreed to the procedure suggested but
it does not appear that counsel for the plaintiff made any
response to the court's suggestion. The court thereupon

read the instructions to the jury. The defendant's first
requested instruction was for a directed verdict in its favor,
which the court refused and to which counsel for defendant
excepted. Defendant's requested instruction No. 15, which was
refused, reads as follows: "You are instructed, Gentlemen of the
Jury, that if Plaintiff's taxi first collided with the tractor
before being struck by the Honolulu Motor Coach bus, then
Defendant could, under no circumstances, be responsible for that
portion of the damage caused by that first collision regardless
who was at fault." To the court's refusal to give the foregoing
instruction defendant duly excepted.
  The jury returned a verdict in favor of the plaintiff, to which
counsel for the defendant noted an exception. Thereafter a motion
for judgment notwithstanding the verdict was made, raising the
same question of law set forth in his oral motion for a directed
verdict, which was by the court denied and counsel for the
defendant duly excepted. He then made a motion for a new trial
based on the same ground, which was likewise denied and to which
he duly excepted.
  The case is here on defendant's bill of exceptions, which
embodies all of the exceptions hereinabove referred to. The
argument falls into two groups. All of the exceptions except the
one to the court's refusal to give defendant's requested
instruction No. 15 may be considered together as the same
question of law is presented by each of them.
  We will first consider the refusal of the court to give
defendant's requested instruction No. 15. Other instructions
given by the court having a bearing upon the issue raised by the
evidence to the effect that the Plymouth sedan first collided
with the slow-moving tractor and was the cause of the accident
were defendant's requested instructions Nos. 8, 9, 10, 11 and 12.
No. 8 is as follows: "You are instructed, Gentlemen of the Jury,
that if you find from the

evidence that plaintiff's driver first collided with the tractor
before being struck by the Honolulu Motor Coach bus under such
circumstances as to render a collision by the Motor Coach bus
unavoidable in the exercise of due care on the part of the Motor
Coach driver, then plaintiff's driver was, as a matter of law,
guilty of negligence which was a proximate cause of the accident,
and you must bring in a verdict for the defendant, no matter
whether you find defendant's driver to have been guilty of any
negligence or not."
  The other instructions requested by the defendant and given by
the court left to the jury the question of whether or not the
driver of the Plymouth sedan was guilty of contributory
negligence and whether or not the accident which ensued was an
unavoidable accident. Both of these issues must have been decided
by the jury against the contention of the defendant. Defendant's
requested instruction No. 15 is so worded as to assume that if
the plaintiff's taxi first collided with the tractor damage
ensued. In view of this fact, there being no evidence of damage
by such collision if it occurred, and the fact that the jury must
have found, under the instructions which the court gave at the
defendant's request, that the taxi did not first collide with the
tractor, we see no error in the court's refusal to give
defendant's requested instruction No. 15.
  The question of law raised by the exception to the denial of
defendant's motion for a directed verdict and to the court's
denial of the motion for judgment notwithstanding the verdict and
the motion for a new trial is the old and often-discussed
question of the liability of a master to third persons for injury
occasioned by negligent operation of the master's instrumentality
when his servant, without authority to do so, employs another to
assist in or take over the performance of the acts entrusted by
the master to his servant. The disposition of the foregoing
question will also

dispose of defendant's contention that there is a fatal variance
between the allegation and the proof.
  No statutory modification of the common law on the first
question has been called to our attention and we know of none.
The question of liability of the defendant in this case must
therefore be tested by the rule at common law. The task of making
a clear statement of the rule is not without difficulty. Many
authors of note as well as many eminent jurists have undertaken
the task and unfortunately they are not in complete agreement.
The precise question has not before been before this court. In 14
Am.  Eng. Encyc. of Law, p. 810, the rule was stated as follows:
"Where a servant employs a third person to perform an act within
the servant's employment, and injury results to another, the
master is liable the same as though his servant employed no
agent." In Wood, Master and Servant (2d ed.), § 308, the rule is
thus stated: "If the servant employs another person to do his
work or to assist him therein, the master is liable for an injury
resulting from such person's acts." In Shearman  Redfield on the
Law of Negligence (4th ed.), § 157, p. 263, it is said: "A
question of some difficulty may arise, where a servant, without
having any real or ostensible authority to do so, employs an
assistant, by whose negligence, in the performance of work
assigned to the former servant, a third person is injured. The
master would not be bound by a contract made in his name by such
a sub-agent, even though it were exactly such as he had
authorized his own servant to make; and from this it might not
unreasonably be inferred that he could not be made liable for the
torts of one whose contracts would not bind him. On the other
hand, there is a manifest inconvenience certain to ensue to the
public at large from thus shifting the responsibility from
masters, who, as a class, are able to meet it, and who receive
the benefit of the service, upon servants, who, as a class, are
entirely unable to compensate

for the injuries thus caused. Public policy, therefore, requires
that masters should be held liable for the consequences in such
cases; and so the courts have held them, although without laying
down any general rule upon the subject."
  Professor Mechem, who has criticized the foregoing statements
of the rule on this subject, has, in his work on agency,
formulated a very comprehensive statement of the rule as follows:
"There may undoubtedly be cases in which the act in question is
rightfully to be deemed to be the act of the servant, and
therefore imposing liability upon the master, notwithstanding
that the physical act of some third person, volunteering or
requested to give aid to the servant, has actually intervened.
Where the servant himself is actually in control, supplying the
will and the motive, the act may be regarded as the act of the
servant himself, — and if negligent, as his negligence, — even
though the servant has exercised or permitted to be exercised,
the physical act of a third person, instead of some other
instrumentality or appliance which might otherwise have been
available and permissible. Where the act which the servant thus
causes or directs is in itself negligent, there could ordinarily
be little doubt of the liability; but even where the fault lies
rather in the manner in which the person so used has done the
act, the liability may attach. 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. The main act itself must
also, in any event, be an act within the scope of the servant's
employment." 2 Mechem, Agency (2d ed.), § 1867, p. 1451.
  In Restatement, Law, T. Agency, § 241, p. 542, in the
preparation of which Professor Mechem took a leading part, the
broad rule is stated thus: "A master who has

entrusted a servant with an instrumentality is subject to
liability for harm caused by its negligent management by one to
whom the servant entrusts its custody to serve the purpose of the
master, if the servant should realize that there is undue risk
that such person will harm others by its management." In applying
the foregoing general rule, the effect of the servant remaining
in a position to control the instrumentality is stated by the
institute as follows: "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." (p. 544.)
  Likewise many courts both in England and America have
considered our precise problem with varying results. One of the
oldest English cases is Booth v. Mister, 7 Car.  P. 66,
decided in 1835 and often cited by American courts. In that case
the declaration alleged that defendant's cart was so negligently
driven by defendant's servant that it struck the vehicle in which
plaintiff was riding, injuring him. It appeared from the evidence
that defendant's servant, whose duty it was to have charge of the
cart, was riding in the cart but that another who was not in
defendant's service was driving with the servant's consent. It
was urged that the allegation was not sustained by the evidence.
Lord Abinger, in answer to this contention, said: "As the
defendant's servant was in the cart, I think that the reins being
held by another man makes no difference. It was the same as if
the servant had held them himself."
  Other English cases indicating the trend in those courts are
Engelhart v. Farrant  Co., 1 Q.B. (1897) 240, and

Ricketts v. Tilling, 1 K.B. (1915) 644. In Engelhart v.
Farrant, supra, a delivery wagon was sent out with a man and a
boy. The man's duty was to drive. The boy had nothing to do with
the horses, it being his duty to deliver parcels. The master had
instructed the man not to leave the cart. The man disobeyed his
instructions and while he was absent the boy drove on and
collided with plaintiff's vehicle and injured him. The court held
that the negligence of the driver in leaving the cart in the
custody of the boy might be found to be the effective cause of
the collision, saying: "If a stranger interferes it does not
follow that the defendant is liable; but equally it does not
follow that because a stranger interferes the defendant is not
liable if the negligence of a servant of his is an effective
cause of the accident."
  In Ricketts v. Tilling, supra, a motor omnibus owned by
defendant had come to a terminus and discharged its passengers.
The driver then gave up his seat to the conductor, who drove the
omnibus, the driver being seated by his side, round certain
streets so as to bring it in position for starting on its return
journey. While so driven, owing to the negligent driving of the
conductor, the omnibus mounted the foot pavement, knocked down a
lamp post and several persons, killing one and injuring others.
The plaintiff was one of the injured persons. At the trial, at
the close of plaintiff's case, the court held that there was no
evidence that the conductor had any authority from the defendant
to drive the omnibus and accordingly entered judgment for
defendant. On appeal this holding was reversed, the court saying:
"It seems to me that the driver, who was authorized to drive, had
the duty to prevent another person from driving, or, if he
allowed another person to drive, to see that he drove properly.
He was sitting beside the conductor and the driving by the
conductor was conducted in his presence. He could not delegate
his authority. It is a

question for the jury whether the effective cause of the accident
was that the driver committed a breach of his duty (which was
either to prevent another person from driving or, if he allowed
him to drive, to see that he drove properly), or whether the
driver had discharged that duty. The accident was due to the fact
that the conductor was driving; when he was driving he met with
some sudden contingency, the motor omnibus mounted the pavement,
and the accident resulted. It is a question of fact for the jury
what was the effective cause. Authorities have been referred to.
Strong reliance has been placed on the case of Beard v. London
General Omnibus Co. (1) Let me say what, in my opinion, that
case decided. The facts were that the journey of the motor
omnibus had come to an end, it had arrived at the terminus of the
journey at Battersea Rise. The driver got off the box, leaving
the omnibus at a place where there was a stand for two omnibuses,
and went to get his dinner. The driving was for the time being
altogether at an end, and, until he came back, the omnibus ought
to have stopped where it was on the stand. The conductor, in that
state of facts, drove the omnibus for the purpose of turning it
round ready for the next journey and an accident resulted. Under
those circumstances, what this Court held was that the plaintiff
must produce some evidence to show that the conductor was a
person authorized to drive, and it was held that the plaintiff
had not discharged himself from the burden cast upon him of
showing that the injury was due to the negligence of a servant of
the defendants acting within the scope of his employment and that
the conductor ought to have been shown to be a person who, under
those circumstances, was authorized to do the act, and there was
no evidence to that effect."
  One of the oldest and most cited American cases dealing with
our problem is Althorf v. Wolfe, 22 N.Y. 355. In that case
one Fagan, defendant's servant, had been instructed

to remove the snow and ice from defendant's roof. He, without
defendant's knowledge or consent, invited a friend, Cashan, to
assist him. They threw the snow and ice into the street. A
passerby was struck and killed. In an action for damages against
the master one of the two opinions cited Booth v. Mister,
supra, to sustain the liability of the master, saying: "The
defendant does not and cannot deny but that he is responsible for
the negligent and wrongful acts of Fagan. If it had been certain
that it was that person, and not Cashan, who threw the piece of
ice which killed the deceased, the defendant clearly would have
been responsible. Instead of accomplishing the mischief in that
manner, Fagan, by a negligent and improper act, enabled Cashan to
do it. If we keep in mind that the defendant is responsible for
the acts of Fagan, and that Fagan took his comrade on to the roof
and thus enabled the latter to do the mischief, it is difficult
to discover any principle which will shield the defendant from
responsibility. It is not necessary to consider Cashan as the
defendant's servant. He was, rather, the instrument by which
Fagan, for whose conduct the defendant was undeniably
responsible, did the wrong."
  In Hill v. Sheehan, 20 N.Y.S. 529, decided in 1892, the
principle announced in Althorf v. Wolfe, supra, was applied
to a case where the defendant, a livery and boarding stable
keeper, entrusted a horse belonging to a patron to his servant to
be delivered to his patron with positive instructions not to
permit anyone else to drive the horse. The servant disobeyed his
instructions and permitted an acquaintance, one Kreuger, to drive
the horse for delivery to the patron. Kreuger negligently drove
the horse and plaintiff was thereby injured. Said the court: "It
is insisted that Kreuger was in no sense defendant's servant, and
consequently he cannot be made liable for his acts. This
overlooks the fact that by the act of the servant who was in

charge, an instrument, i.e., Kreuger, was used for the
prosecution of the master's business, and that such instrument
inflicted the injury. It is not essential, under such
circumstances, that the relation of master and servant should
exist, in order to fasten responsibility. It is sufficient when
it appears that the master's business is being prosecuted by the
instrument used."
  One of the late New York cases called to our attention is
Grant v. Knepper, 245 N.Y. (1927) 158, in which Chief Judge
Cardozo carefully reviewed some of the English and many of the
American cases and said: "Defendant sent out his motor truck with
a driver and a salesman to deliver merchandise. On the way back
the salesman asked to be allowed to run the car, though he was
without an operator's license. Permission being granted, he
slipped into the seat behind the wheel while the driver stood
upon the running board beside. After going about a mile and a
half, the salesman ran the truck into a car which had been parked
along the roadway. The truck, after striking and damaging the
car, went on about forty feet till it collided with a telephone
pole, which it threw to the ground. The owner of the car sues the
owner of the truck. (1) We think a case was made for submission
to the jury, though liability were to be tested by the rule at
common law. The driver was negligent, or so the triers of the
facts might find, when he placed at the wheel a substitute
without skill or experience in the management of cars. The
substitute did not even have such presumptive evidence of
competence as may be supplied by an operator's license (Pigeon
v. Mass. N.E. Ry. Co., 230 Mass. 392, 395; Bourne v.
Whitman, 209 Mass. 155, 171), and his lack of skill is apparent
in the very nature of the accident. The driver was negligent
again, or so the triers of the facts might find, in failing to
supervise or control the conduct of his substitute, who ran the
car at a rate of speed presumptively excessive in the operation
of

a truck (Highway Law; Cons. Laws, ch. 25, §§ 287, 288; cf.
Yonkers Code of Ordinances, art. IV, § 67, as amended by General
Ordinance No. 4 of Oct. 15, 1916). We do not ignore the fact that
the substitution was itself unauthorized, and so a wrong to the
employer. Even so, the employer was not relieved of liability for
any negligence assignable to the driver, his authorized
representative, who still remained upon the truck with general
power and authority of supervision and control (cf. Lloyd v.
Grace, Smith  Co., 1912 A.C. 716, quoting Barwick v. Eng.
Joint Stock Bank, L.R. 2 Ex. 259). If the driver had left the
seat and let the car proceed without any one at the wheel, the
defendant would have been liable for any damage caused thereby.
He is not less liable when the driver places at the wheel an
incompetent substitute (Pollock on Torts, p. 87), or fails to
intervene thereafter with protest or command when protest or
command would be timely to avert the loss (Dowler v. Johnson,
225 N.Y. 39). ``Co-operation may be inferred from acquiescence
where there is power to restrain' (Dowler v. Johnson, supra).
The duty rests upon the servant with continuing obligation to
``keep control and exclude incompetent meddling' (Pollock,
supra) while he remains upon the car."
  In Copp v. Paradis, 130 Me. 464, 157 A. 228, in which
Ricketts v. Tilling, supra; Engelhart v. Farrant  Co.,
supra, and Grant v. Knepper, supra, are cited with approval,
a very clear statement of the common law rule is found, the court
saying: "We are impressed with the reasons underlying the New
York and English rule. That concept of the law seems more logical
than the broad theory of constructive identity or the denial of
any liability unless the person directly causing the injury
stands in the relation of servant to the master. We are of
opinion that at common law, which prevails in this state, the
sound rule is that, while an employee can not create the relation
of master and

servant between his employer and an assistant who, without
authority, he substitutes for himself in the employer's business,
still, if the negligence of the employee in so engaging an
assistant who was incompetent or in failing to supervise such an
assistant, be he competent or incompetent, is a proximate cause
of the damage complained of, the employer, is liable although the
assistant's negligence in the presence of the employee and in
combination with his negligence contributed proximately to the
accident."
  Conway v. Pickering, 111 N.J.L. 15, 166 A. 76, was an
action for damages for personal injuries suffered by plaintiff
when struck by an automobile owned by the Courier-Post Company,
one of the defendants, the operation of which the owner had
entrusted to the defendant Pickering. The other defendant was one
Wiegand whom Pickering procured to accompany him and drive the
car because he, Pickering, had broken his glasses. While Wiegand
was driving with Pickering on the seat beside him he proceeded,
without protest from Pickering, against the traffic light and
while so proceeding ran down plaintiff who was crossing the
street. The court granted a nonsuit as to the Courier-Post
Company and plaintiff appealed. The appellate court, on the
authority of Grant v. Knepper, supra, held that the nonsuit
was wrong, the evidence not being sufficient to justify
withdrawing from the jury the question of the negligence of the
Courier-Post Company's servant, Pickering, the court saying:
"From the statement of facts already given it appears that the
chauffeur, who, of course, was the servant of the Courier-Post
Company, was in position to observe the movement of the car and
its handling by the substituted driver. That being true he was
not absolved from the duty to exercise care to see that its
operation was with due and reasonable care. Conceding, for the
purposes of the case, that the employer of Pickering was not
responsible for the unauthorized employment of

Wiegand or for the acts of Wiegand so employed, it was
responsible for the acts and omissions of Pickering whom it had
placed in charge of the car and who was expected to operate it or
to see that it was operated carefully while he was on it, and the
law in such cases, we think, is stated with accuracy by Chief
Justice Cardozo in the similar case of Grant v. Knepper, 245
N.Y. 158, when he says, ``the duty rests upon the servant with
continuing obligation to keep control and exclude incompetent
meddling while he remains upon the car,' and we might add
incompetent or careless handling, and consequently that ``the
driver was negligent * * * or so the triers of the facts might
find, in failing to supervise or control the conduct of his
substitute who ran the car at a rate of speed presumptively
excessive in the operation of a truck.'"
  A detailed review of all the authorities cited would unduly
extend this opinion. We have carefully considered the reasoning
of all the cases cited or coming to our attention. Many of them
support the rule so clearly announced by Chief Judge Cardozo in
Grant v. Knepper, supra, and approved in Copp v. Paradis,
supra, and Conway v. Pickering, supra. Some of the
additional cases supporting that rule are: McAdon v. Times
Pub. Co., 272 S.W. (Tex.) 814; Thyssen v. Ice and Storage
Co., 134 Iowa 749, 112 N.W. 177; Vorbeck v. Patten-Davies
Lumber Co., 67 Cal. App. 475, 227 P. 929; City of
Indianapolis v. Lee, 76 Ind. App. 506, 132 N.E. 605.
  A much broader basis of liability of a master for negligence of
a substitute employed by his servant without express or implied
authority is announced in some cases, notably the following:
Emison v. Wylam Ice Cream Co., 215 Ala. 504, 111 So. 216;
Hendler Creamery Co. v. Miller, 153 Md. 264, 138 A. 1;
Geiss v. Twin City Taxicab Co., 120 Minn. 368, 45 L.R.A.
(N.S.) 382, 139 N.W. 611. These cases seem to hold that neither
negligence in the selection

of the substitute nor in failing to supervise or control the acts
of the substitute need be found to make the master liable. Other
cases, notably Butler v. Mechanics Iron Foundry Co.,
259 Mass. 560, 156 N.E. 720, 54 A.L.R. 849, seem to hold that the
relation of master and servant must be found to exist between the
defendant and the substitute employed by defendant's servant in
order to impute to the defendant the negligence of the substitute
and that negligence of the servant in making the employment or in
failing to supervise cannot be made the basis of liability.
  The question under discussion is one of first impression in
this jurisdiction. Many courts in other jurisdictions have
considered the question with varying results although we find
less conflict in the basic principles underlying the decisions
than in their application to the facts. From a very careful study
of the authorities we are convinced that the rule stated by Chief
Judge Cardozo in Grant v. Knepper, supra, sets forth the
correct rule and that it is supported by the views of Professor
Mechem, the Restatement of the Law, the English cases herein
referred to, many earlier American cases and approved by the
later cases referred to above.
  Applying the principles which we have found to express the
correct rule to the facts of this case we hold that the defendant
was not entitled to a directed verdict for the reason that the
evidence was sufficient to require submission to the jury the
question of whether or not the defendant's servant, Carvalho, was
guilty of negligence in permitting Kaipo to drive or in failing
to so supervise his driving as to avoid the collision which
ensued and whether or not such negligence, if found, was the
proximate cause of the accident. These were questions of fact for
the jury under proper instructions. Had the defendant taken this
view of the law and submitted to the court proper instructions on
this theory, if refused, the court's refusal to give

them would have been error. But no such instructions were
requested. Mere nondirection on matters of law is not ground of
error where specific instructions have not been requested.
(Nawelo v. von Hamm-Young Co., 21 Haw. 644; Sylva v.
Wailuku Sugar Co., 19 Haw. 602; Territory v. Furomori,
20 Haw. 344.)
  It follows from what we have said that the liability of the
defendant must be based on negligence of its servant, Carvalho.
The allegation of negligent driving and operation of defendant's
motor coach by John Carvalho, servant and agent of defendant, is
consistent with the theory of liability which we have adopted.
The questions of negligence on the part of defendant's driver,
which proximately caused the accident, were submitted to the jury
by instructions requested by defendant. Had the defendant seen
fit to have the jury more fully instructed as to whose negligence
could be attributed to it the jury would have been justified,
under the evidence before it, in finding that Carvalho, for whose
negligence defendant is admittedly chargeable, was negligent in
permitting Kaipo to drive, notwithstanding the fact that the
undisputed evidence is that he was a licensed public chauffeur.
He, Kaipo, admitted that he had been drinking that evening. That
alone would have prevented this court from rejecting a finding of
negligence on the part of Carvalho in permitting him to drive.
Likewise the jury would have been justified, under the evidence,
in finding that Carvalho was negligent in failing to supervise
the driving of Kaipo. There was evidence that the motor coach
which Kaipo was driving had been, for a considerable distance,
following plaintiff's Plymouth sedan and it is undisputed that
there was a slow-moving tractor crossing the bridge upon which
the accident occurred which was seen by at least one occupant of
the motor coach. Kaipo admits that he did not see the tractor and
didn't know of its presence until after the accident. He was, or
at least

the jury could have concluded that he was, driving too close to
plaintiff's sedan to enable him to stop in the event of an
emergency and that Carvalho's failure to warn him of this danger
was negligence on the part of Carvalho as well as negligence on
the part of Kaipo and was a proximate cause of the damage
complained of.
  As has been so well-stated by the supreme court of Maine in
Copp v. Paradis, supra, while an employee cannot create the
relation of master and servant between his employer and an
assistant who, without authority, he substitutes for himself in
the employer's business, still, if the negligence of the employee
in so engaging an assistant who was incompetent or in failing to
supervise such an assistant, be he competent or incompetent, is a
proximate cause of the damage complained of, the employer is
liable, although the assistant's negligence in the presence of
the employee and in combination with his negligence contributed
proximately to the accident.
  We do not find it necessary to pass upon the question raised by
counsel for plaintiff to the effect that the territorial courts
are without jurisdiction to grant motions for judgment non
obstante verdicto for the reason that all of the issues argued,
which are presented by the exception to the denial of that
motion, are also presented by other exceptions.
  For the reasons herein set forth the other exceptions must be
and are hereby overruled.