But the defendant contests not only the facts, but the inferences to be drawn from the facts, and claims that, although October 17, 1905, she received a dividend and cash for coupons amounting to $310, it is not shown that that was the money deposited; that the husband did have an income sufficient to enable him to make the deposits; that he was an industrious man; that he carried on the farm, kept cows and hens and worked upon the highway and received a pension; that it is not unreasonable to infer that the wife may have given some money to the husband, and the fact that they usually went to the bank together, when they had business there, does not warrant the inference that they were together when the last two deposits were made, and that when the last deposit was made the wife had an account in the Freeport branch of the Lewiston Savings Bank, where she could have deposited the money in her own name and the amount have drawn interest. Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, HANSON, and PHILBROOK, JJ. Sidney St. F. Thaxter, of Portland, for plaintiff. Hinckley & Hinckley and E. H. Wilson, all of Portland, for defendant. HALEY, J. This is an action of replevin for four pigs, tried at the December term, 1914, of the superior court for Cumberland county. The verdict was for the defendant, and the case is before this court upon a motion to set aside the verdict because: (1) As against law and evidence; (2) because the verdict was not responsive to the issue. The plaintiff claimed that he had repudiated and rescinded the sale of the pigs by his manservant, whom he claimed he instructed to sell them to a packing company. The defendant claimed that, if the servant did not have authority to sell the pigs to him, the plaintiff ratified the sale with full knowledge [5] A consideration of the evidence shows of all the facts, and that the plaintiff did a possibility in favor of each contention, but not return to him the check and money paid fails to prove, by clear and satisfactory evi- to the servant for the pigs and given the dence, that a trust was declared when the plaintiff by the servant. The plaintiff claimlast two deposits were made, and to accepted he tendered them to the defendant after either contention would be guesswork and the pigs were replevied and the defendant renot decision. As the plaintiff has not prov-fused to receive them, but the plaintiff did ed, by clear and convincing evidence, that a not keep his tender good by bringing them trust was declared when the deposits were into court, or offering at the trial to return made, and as the acts and words relied upon by the plaintiff do not unequivocally imply that the husband held the last two deposits in trust for the wife, the plaintiff has failed to prove that a trust was declared when the deposits were made, or to furnish satisfactory evidence of a subsequent declaration of trust, and the finding of that fact by the sitting justice was authorized. Appeal dismissed. Decree below affirmed. (113 Me. 236) HOLT v. ELWELL. them. The verdict is not so clearly against the evidence that we are authorized to set it aside as against law and evidence. When the jury retired to their room it was 7 o'clock p. m., and they were instructed, if they agreed upon a verdict, to seal the verdict and notify the officer, who would allow them to separate, and to return the verdict at the coming in of court in the morning. It seems that the clerk, instead of furnishing the verdicts usual in cases of replevin, gave the jury the blanks used in actions of tort, and they used and returned to the (Supreme Judicial Court of Maine. March 30, court, signed by the foreman, the one mark 1915.) TRIAL 340 — VERDICT - DEFECTS AND IR- Where, in replevin to recover the possession of pigs, the only issue was as to the title to the pigs, and the court told the jury to find for plaintiff if the pigs were his property, and for defendant if they were the property of defendant or any person other than plaintiff, a sealed verdict of "not guilty," returned as a result of the clerk's mistake in furnishing the jury the wrong forms of verdict, would not be set aside, but might be amended, and judgment entered for nominal damages and a return of the property replevied. [Ed. Note. For other cases, see Trial, Cent. Dig. 88 795-799; Dec. Dig. 340.] On Motion from Superior Court, Cumberland County, at Law. ed "Defendant," "that the defendant was not guilty," and the plaintiff asks that the verdict be set aside because it is not responsive to the pleadings, and does not settle the title. The plaintiff states in his brief: "The only issue presented was one of title as between the plaintiff and defendant, and the burden rested upon the plaintiff to establish his title." The court instructed the jury: "If they [the pigs] were the property of the plaintiff, then, of course, your verdict would be for him. If they were the property of the defendant, or any person other than the plaintiff, your verdict would be for the defendant, which means a judgment for the return to him of the pigs." In Moulton v. Bird, 31 Me. 296, the court Action by Erastus Eugene Holt against George F. Elwell. Verdict for defendant, and said: plaintiff moves to set aside the verdict. Motion overruled. "It is apparent by the record that no other fact was in issue than that of property, which "The verdict was clearly erroneous in point of form; but we fail to see how the substantial rights of the parties could possibly have been affected by the mistake. There is no room for doubt as to the party in whose favor the jury intended to decide, nor as to the amount which they held him entitled to recover. The form of the verdict was doubtless inadvertently furnished by the clerk and never engaged the attention of the jury." And the court allowed the verdict to be amended. In this case, as in that, the form of the verdict was inadvertently furnished by the clerk, and never engaged the attention of the jury, and the law does not allow a clerical error in a matter of form to deprive a suitor of a verdict won upon the merits of his case. The verdict may be amended by the court, and nominal damages awarded the defendant, and a return ordered. Moulton v. Bird, supra. Motion overruled. (113 Me. 260) POLAND v. LOUD. (Supreme Judicial Court of Maine. April 1, 1915.) 1. ENTRY, WRIT OF 1-NATURE-EQUITABLE RELIEF. Under Rev. St. c. 84, §§ 14, 17, 19, and 21, providing for the application of equitable remedies in actions at law, etc., where the court decreed that the issues arising under a writ of entry were to be determined under the rules of equity, the case became practically a cause in equity, save in matters of pleading and proce dure. [Ed. Note.-For other cases, see Entry, Writ of, Cent. Dig. § 1; Dec. Dig. 1.] 2. EQUITY 422 MENT "FINAL DECREE." INTERLOCUTORY JUDG A decree, in a writ of entry heard under equity rules, that defendant, under his father's will, had the right to occupy the house, etc., as he had done before his father's death, and in case of a failure of the parties to agree to what occupancy the defendant was entitled to that question would be determined by the court, and such occupancy be assigned to him, was not final, and did not work a termination of the action, since a "final decree" is that which fully decides and disposes of the whole case, leaving no further question for the future consideration and judgment of the court; it being immaterial that the decree was improperly treated as final and the case dropped from the docket. [Ed. Note. For other cases, see Equity, Cent. Dig. $$ 932-944, 947-949; Dec. Dig. 422.] 3. ABATEMENT AND REVIVAL 7-PENDENCY OF OTHER ACTION-PROVISIONAL DECREE. Defendant under his father's will had the right to occupy a farmstead, in which his mother had a life estate, as a home, as before his father's death. A controversy arose between mother and son as to the extent of his right, and the court entered a provisional decree to the effect that the son was entitled to a home as he had been accustomed, and that in case of a failure of the parties to agree as to what constituted such home the court would further try and decree upon that issue. Subsequently the mother assigned to P., who brought suit against the son in trespass to recover damages for trees cut. Held, that the provisional decree in the former suit left such suit still pending; that, while it was pending, the present action was prematurely brought, since it would depend largely upon the provisions of a final decree in the first action regarding the extent of the right of the defendant; and that upon dismissal of the instant suit the plaintiff might become a party to the former suit by amendment, served as a supplemental bill under equity rule 21. [Ed. Note.-For other cases, see Abatement and Revival, Cent. Dig. 88 35-37; Dec. Dig. 7.] Action by Ida V. Poland against Zenas Loud. Judgment of nonsuit. Argued before SPEAR, CORNISH, KING, BIRD, and HANSON, JJ. Rodney I. Thompson, of Rockland, for plaintiff. Weston M. Hilton, of Damariscotta, for defendant. BIRD, J. This is an action of trespass quare clausum to recover damages for trees cut by defendant upon land alleged to be of plaintiff. The defendant pleaded the general issue, with brief statement of equitable matters in defense based upon the provisions of the deed hereinafter referred to, the character of defendant's occupancy of the premises, and a former decree in equity. The case is before us upon agreed statement of the parties whereby this court "may render such judgment in law, or make such decree in equity as the rights of the parties may require, irrespective of the form of action." The facts are, stating them as briefly as may be: One Robert Loud, having title to a farmstead, on the 9th day of October, 1897, a few days before this death, conveyed a life estate in the premises to his wife, Ruth Loud, "she to have the care and custody of the same, but not to make any unnecessary waste or use thereof, and the understanding is, that my children shall continue to come and go, and have a home on the place, as they have been accustomed heretofore, and at the decease of my said wife, said property or estate, or whatever remains, shall descend in order of law to my said children or their representatives." It is under this clause, quoted from the deed, that the controversy between the parties arises. The defendant, Zenas Loud, was one of the children referred to. Upon the decease of Robert Loud, Ruth Loud entered into possession and Zenas Loud enjoyed a home upon the premises. In 1905 or 1906, however, Ruth Loud brought her writ of entry against Zenas Loud demanding a life estate in the premises described in the deed. To this action the defendant pleaded the general issue, and, by brief statement, an equitable defense setting up his rights under the deed of his father and his enjoyment of a home upon the premises during the life of his father and since his death. The cause was heard by the court, and it was decreed: "First. That this case is to be determined under the rules of equity. "Second. That the equitable rights of the defendant in the premises described are: "(1) To occupy the house, outbuildings, and farm as he has been accustomed to prior to his father's decease. (2) In case of a failure of the parties to agree as to what occupancy of the house, outbuildings, and farm in the language of the deed constitute 'a home on the place as they (including Zenas) have been accustomed to heretofore,' then this question of fact is to be determined by the court, and the particular occupancy to which Zenas is entitled shall thereby be assigned to him.' By deed of December 16, 1913, Ruth Loud conveyed the premises to the plaintiff, who at the same time gave the former a bond that the particular occupancy to which defendant is entitled may be assigned to him. To enable her thus to become a party, a bill in equity in the nature of a supplemental bill would formerly have been necessary (Mason v. Y. & C. R. R. Co., 52 Me. 107), but the same result may be now accomplished by amendment, served as such bill should be served (Equity Rule 21 [70 Atl. xvi]). See Collins v. Snow, 218 Mass. 542, 545, 106 N. E. 148. The motion for such amendment should be accompanied, if the case is no longer upon the docket, by a petition asking that the action be brought forward. Or defendant may file such petition or motion at any time. Until the nature of the occupancy to which defendant is entitled has been determined and assigned to him by decree, in the suit brought by Ruth Loud, an action at law by the present plaintiff, even if ever maintainable, which will depend largely, if not wholly, upon the nature of such decree, is at least prematurely brought. Plaintiff nonsuit. (113 Me. 264) PEASE v. GARDNER et al. for her support secured by mortgage of the (Supreme Judicial Court of Maine. April 3, interest conveyed. [1] The court having determined and decreed that the case of Ruth Loud v. Zenas Loud was to be determined under the rules of equity, the case became to all intents and purposes a cause in equity, save in matters of form in pleading and procedure. R. S. c. 84, §§ 14, 17, 19, 21; Miller v. Packing Co., 88 Me. 605, 611, 615, 34 Atl. 527; Hussey v. Fisher, 94 Me. 301, 306, 47 Atl. 525; Hurd v. Chase, 100 Me. 561, 564, 62 Atl. 660; Clark v. Chase, 101 Me. 270, 277, 278, 64 Atl. 493; Martin v. Smith, 102 Me. 27, 31, 65 Atl. 257; Bradley, etc., Co. v. Mfg. Co., 104 Me. 203, 207, 71 Atl. 710. [2] While the action is not by the language of the decree expressly retained, it is by implication and quite as effectually. A final decree is that which fully decides and disposes of the whole cause, leaving no further question for the future consideration and judgment of the court. Gilpatrick v. Glidden, 82 Me. 201, 203, 19 Atl. 166. See Lothrop v. Page, 26 Me. 119. See, also, Gerrish v. Black, 109 Mass. 474, 477; Forbes v. Tuckerman, 115 Mass. 115, 119. Whether the decree recited above was treated as a final decree and the case improvidently dropped from the docket is immaterial. It is still pending. 1915.) 1. MUNICIPAL CORPORATIONS 705-USE OF STREETS-COLLISION OF VEHICLES-NEGLI GENCE. A chauffeur who, on a town street, started to back his automobile without looking to see if any one was behind him, and ran into a horse and wagon, was negligent, though he did not know of their presence. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88 1515-1517; Dec. Dig. 705.] 2. MASTER AND SERVANT 301-MASTER'S LIABILITY TO THIRD PERSONS-EXISTENCE OF RELATION. Where an automobile and chauffeur were hired by others to take a political speaker through the county and were placed at the dismaking the trip, the speaker was only a passenposal of the speaker during the time he was ger, though he could direct the route to be taken, and was not liable as master for the negligence of the chauffeur. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1210-1216; Dec. Dig. 301.] 3. MASTER AND SERVANT 301-MASTER'S LIABILITY TO THIRD PERSONS-EXISTENCE OF RELATION. Where two members of a political committee were given the use of a private automobile to take a political speaker through the county, they to pay for the gasoline and chauffeur, and they hired the chauffeur of the owner of the car to drive it on that occasion, and placed the car and chauffeur at the disposal of the speaker, the chauffeur during that trip was their servant, since he was subject to their di them from that particular service, and they are liable for injuries caused by his negligence. [3] The present plaintiff, the assignee of Ruth Loud, has failed to agree with defend-rection and control and could be discharged by ant, and the contingency provided for in the decree has arisen. To the proceedings in which that decree was entered the plaintiff in this suit may become a party in order [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1210-1216; Dec. Dig. 301.] is barren of any facts warranting such a conclusion. He did nothing which the ordinarily prudent man should not have done, nor did he fail to do anything which the ordinarily prudent 4. MASTER AND SERVANT 301-MASTER'S Nor is there any evidence of want of due LIABILITY TO THIRD PERSONS-EXISTENCE care on the part of the plaintiff. The record OF RELATION. The fact that those hiring the car were members of a political committee, and acting on its behalf, does not relieve them from liability on the theory that they were merely agents and therefore not liable for the negligence of a subagent, since the other members of the committee were their associates and not their superiors, and they were not subject to the orders of others, and were principals, not agents. [Ed. Note. For other cases, see Master and man, under like circumstances, should have done. The negligence of the chauffeur and that alone was the proximate cause of the injury. Liability on the part of Servant, Cent. Dig. §§ 1210-1216; Dec. Dig. some one, therefore, is established. 301.] Report from Supreme Judicial Court, Knox County, at Law. Action by Jethro D. Pease against Obadiah Gardner and others. On report from the law court of Knox county. Judgment entered for the plaintiff against defendants William P. Hurley and Josiah H. Hobbs, and for the defendants Obadiah Gardner and Arthur L. Herrick. But the crucial question is, Are these defendants, or any of them, legally responsible? The machine was owned by Mr. Montgomery, and he was riding in it at the time of the accident. Suit was first brought against him, but it was held that the action could not be maintained because, "although the owner of the automobile was not in the possession, control, and management of it; nor was the chauffeur acting as his servant, at the time of the accident." Pease v. Montgomery, 111 Me. 582, 88 Atl. 973. Subsequently the pending suit was brought against these defendCharles T. Smalley, of Rockland, for plain-ants, Messrs. Gardner, Hurley, Hobbs, and tiff. Montgomery & Emery, of Camden, for Herrick. defendants. Argued before SPEAR, CORNISH, KING, BIRD, and HANSON, JJ. CORNISH, J. On September 7, 1912, the plaintiff was injured by a collision between a wagon in which he was riding and an automobile, driven by the defendant Herrick as chauffeur and in which the defendant Gardner was a passenger. [1] The plaintiff's team was being driven by his father, and was standing near the platform of a store in the town of Hope and about 10 feet behind the automobile. Mr. The precise problem to be solved therefore is, In whose possession, control, and management was the automobile in the eye of the law, and whose servant at the time of the accident was the chauffeur Herrick? The facts upon which this solution depends are uncontroverted. The machine itself was owned, as we have said, by Mr. Montgomery, who lived in Camden. Herrick was his regularly employed chauffeur. The defendant, Capt. Hurley, who was a member of a politi cal state committee for Knox county, asked Mr. Montgomery, a day or two before the ac chauffeur and the gasoline." Gardner and others came from a hall over cident, as Mr. Montgomery says, "for the use the store, in which a public meeting had been of my car for some speakers on Saturday to held, entered the machine and, in starting, take a trip through the county, and I asked the chauffeur suddenly backed the auto-him who were going and he told me, and I mobile against the plaintiff's horse, frighten- told him he could have the use of the car. ed him and caused him to cramp the wheels of the wagon in such a way that the plain-machine said he would furnish and pay the * Capt. Hurley when he engaged the tiff either jumped out or was thrown out, and his right leg was caught in the spokes of the wheel and injured. The top of the car was up, obscuring somewhat the view to the rear. The chauffeur evidently did not know of the presence of the team, but he took no sufficient means to ascertain the fact, and his conduct was clearly such as to render him negligent under the circumstances. To suddenly back an automobile in a public street of a village without first ascertaining, or making reasonable efforts to ascertain, whether another vehicle was standing within a short distance behind, and without giving any preliminary warning or signal, save perhaps the cut-out, which sounded almost at the same instant that the team was struck, cannot be deemed the act of a reasonably prudent man. The mere statement of the case proves negligence on the part of the chauf feur. "I remember talking with you [Mr. Montgomery]; that you told me that Judge Hurley had asked you if he could have your car; that he couldn't get any public car down here, and you and go with him. I didn't come down to Rocktold him he could, and told me I could have it land. * * I told Mr. Herrick about noon that we wanted him to go down there so as to bring Mr. Gardner up there at 2 o'clock, * I thought if he would do it I would give him $5 to complete the trip that day and bring Mr. Gardner back here Saturday night." "Q. And did you have him take the car and go down? A. He did. Q. And did you afterwards settle with him? A. I did." The engagement and operation of the car on this special trip, therefore, seem to have been a joint enterprise on the part of Capt. Hurley and Mr. Hobbs, who were interested in a common undertaking. Capt. Hurley engaged the car and apparently furnished the gasoline, while Mr. Hobbs engaged and paid the chauffeur. The car was sent to Rockland, where it took on Senator Gardner and Mr. Butler, who were the speakers on the tour, which was to include Camden, Hope, and other towns. Mr. Gardner's wife and daughter also accompanied them, and Mr. Montgomery boarded the car at Camden and went to Hope. Capt. Hurley, who was present when the car reached Rockland, put it, as he says, in "Mr. Gardner's charge when he left the hotel. The car was for his use, and to be returned when he got through with it, at the end of his tour, the way I understood it." to another in such a way as to become the servant of that other for the time being in a particular transaction, with all the legal consequences of the new relation. Wyman v. Berry, 106 Me. 43, 75 Atl. 123, 20 Ann. Cas. 439, and note; Wilbur v. Construction Co., 109 Me. 521-525, 85 Atl. 48. The same principle applies when, as here, the servant is hired by the new master with the consent of the general or original master. The test to be applied in the application of the rule has been clearly stated as follows: "The test is whether in the particular service which he is engaged or requested to perform he continues liable to the direction and control of his original master or becomes subject to that of the person to whom he is lent or hired or who requests his services. It is not so much the actual exercise of control which is regarded, as the right to exercise control." 26 Cyc. 1522, Janik v. Ford Motor Co. (Mich. 1914) 147 N. W. 510, 52 L. R. A. (N. S.) 294. This test is fully met in the case at bar. So far as this trip was concerned, the original master, Montgomery, was as a stranger, [2] Under these facts it is clear that no and the new masters, Hurley and Hobbs, not liability rested upon Mr. Gardner. He had only had the right to exercise control over nothing to do with engaging the car. He the chauffeur but actually did exercise it. was simply one of the passengers for whom The original master surrendered the right to the car was engaged, and although it was put control and the new masters assumed it. in his charge during the trip, so far as di- Herrick, for the time being, was their chauf rections to the chauffeur were concerned as feur whom they could retain or discharge at to the route to be taken, that did not create will, and who was in charge of a car over the relation of master and servant between which they had the temporary right of posthem. It was as if the owner of a car session. He was conveying their invited should invite a friend to ride, without the guests, and the fact that the guests were owner accompanying him, and instruct the allowed by the new masters to choose the chauffeur to go wherever the friend might route which they should travel did not take direct. The chauffeur would still remain the away the legal right of control existing in servant of the owner, and the friend would such masters. Herrick still remained their still be merely the passenger for whose servant, and for his negligent acts while thus pleasure or convenience the ride is taken. employed they were legally liable. That was the situation here so far as Mr. Gardner was concerned. He was not the master in any sense and Herrick was not his servant. [4] The learned counsel for the defendants seek to avoid this liability on the ground that Capt. Hurley was a member of a state committee, and Mr. Hobbs of the Camden town committee, and claim that an agent is not ordinarily held liable for the misfeasance of a subagent. The fallacy in this proposition lies in the fact that these two men were not agents, but were members of a larger body and principals in themselves. They were carrying out no orders from a superior authority, but were acting on their own initiative in forwarding the campaign. Capt. Hurley had charge of Knox county, and Mr. Hobbs was chairman of the committee of the town of Camden. They each had associates and equals in their work, but no superiors, and so far as the transportation of speakers was concerned, there is nothing to show that each did not have absolute authority to conclude all necessary arrangements. By their own, acts and those of their servant Herrick in this particular they must both be bound. [3] It is equally obvious that on this trip, Herrick whose want of due care caused the accident was the servant of Messrs. Hurley and Hobbs. True, he was the regular employé of Mr. Montgomery, but by mutual agreement between all the parties, including Herrick himself, he had become for the time the servant and employé of Hurley and Hobbs. Mr. Montgomery had loaned them his car without charge, and they had made, with Mr. Montgomery's consent, an independent contract with Herrick and had hired him as chauffeur and subsequently paid him. They had the right to employ whom they pleased, and the fact that they employed, with Mr. Montgomery's consent, the man who was accustomed to run this car made him no less their servant in that particular transaction. It was a new employment, mutually agreed upon and attended with all the legal conse- There remains the question of damages, as quences usually pertaining to such a rela- this case is before the law court on report; tion. This principle is well recognized. A the evidence at the first trial being made a servant admittedly in the general employ- part of the record in this case by agreement. |