Smith v. Spitz

This is an action for frightening a horse of the plaintiff’s intestate, so that it ran' away and killed itself. The horse was frightened by some bills or posters of the defendant Spitz, which had been thrown in a heap in the road, and two of which were blown against the horse by the wind. At the trial, the presiding justice directed a verdict for the defendants, and the plaintiff excepted. We. are of opinion that the ruling was right, and that, if there was any evidence that the person who put the posters in the road was the defendant’s servant, and not an independent contractor as he would seem to have been, plainly he was not acting within the scope of his employment in doing what he did.

*320The bills in question were large bills, intended to be posted up for advertisement. They measured about three feet by four, and three feet by one, respectively, and therefore were too large for handbills, or for other use than posting. The defendant employed a bill-poster to put up two hundred bills for ten dollars. By all the testimony the bills were to be put on certain private bill-boards, and other like places, in South Framingham, Saxonville, Framingham Centre, and Ashland. In fact the employee went to Franklin, about fifteen miles away, and deposited the bills in a heap in the road. The only ground on which the jury could have found that the man was a servant was that there was evidence that the defendant Steinberg, Spitz’s managing man, said that he sent his “ agent ” to Framingham, etc., which is not enough, and we do not think that we need the assistance of a jury to say that leaving the bills in the road, fifteen miles away, was not within the scope of an employment to paste them on boards in Framingham. See Walton v. New York Central Sleeping Car Co. 139 Mass. 556; Rayner v. Mitchell, 2 C. P. D. 357; Storey v. Ashton, L. R. 4 Q. B. 476 ; Wilson v. Owens, 16 L. R. Ir. 225. . Exceptions overruled.