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[3] The law of agency rests upon the theory of a reasonable responsibility for acts of one's servants. It is apparent that any theory which would result in making the defendant liable to Wallace for this accident, on the facts now appearing in evidence, would impose an unreasonable and unjust burden upon the employer.

But it is said that, conceding this to be so, Freeman occupied a dual position. Personally, he was the host of Wallace, who rode as his guest, and as agent of the defendant | he was engaged in driving the car from Bos- The suggestion that Freeman had apparent ton to Manchester. Hence it is said the de- authority to extend the invitation to Walfendant, through Freeman, knew of Wallace's lace, on behalf of the defendant, and that presence and was bound to act reasonably Wallace acted on the strength of such appeartowards him in the operation of the car. The ances, is not borne out by any evidence. defect in this reasoning is that when the There was nothing tending to show a custom agent acts in this dual way knowledge on of automobile dealers in general, or of this his part is not chargeable to his principal. | defendant, to so conduct the business. The Brookhouse v. Co., 73 N. H. 368, 62 Atl. 219, | evidence was that the defendant forbade such 2 L. R. A. (N. S.) 993, 111 Am. St. Rep. 623, a proceeding and there was no testimony 6 Ann. Cas. 675. The application of the rule tending to show that the situation was mischarging the principal with his agent's knowl- understood by Wallace. edge "is limited by the reasons that sustain it." Clark v. Marshall, 62 N. H. 498. Those reasons are wholly lacking in the present

case.

In driving the car to Manchester, Freeman was acting as the host of Wallace. Although driving the car also promoted the defendant's business, such promotion bore no relation to the carriage of Wallace. The transportation of Wallace in no way aided the defendant's work of taking the car to Manchester. It was not a reckless or careless method Freeman used to do his master's work, but a distinct undertaking of his own. If the dual character of Freeman's acts is to be considered at all, it must be followed throughout the transaction. So far as he operated the car to carry Wallace, he did so as an individual. So far as Wallace was concerned, it was Freeman, and not the defendant's agent, who drove the car.

As there was no evidence to sustain a finding that Freeman was acting as the defendant's agent in carrying Wallace, it is not necessary to consider many of the questions which have been argued. While it is true, as the plaintiff claims, that the extent of the authority conferred upon an agent may be a question of fact, yet the question whether there is any evidence to prove it is one of law. The plaintiff fails because he did not introduce evidence of the essential fact. If there had been testimony from which a finding of authority conferred could reasonably have been made, the case would have been for the jury; but it was error to permit them to find the fact without evidence. The defendant's motions should have been granted.

Verdict set aside; judgment for the defendant.

All concurred.

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A contract in writing for the purchase of lumber from sellers in New Jersey, dated at Bridgeport, Conn., and reading "Ship us transit car containing," etc., and "Inspection allowed on this car," held properly construed as calling for a delivery in Bridgeport, the buyers' place of business, despite Gen. St. 1918, § 4709, making the seller's place of business the place of delivery, though the provision for inspection was not conclusive, in view of section 4713. 2. EVIDENCE

543(4) EXPERT OPINION

-VALUE OF LUMBER.

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"Bridgeport, Conn., May 7, 1917. "Metropolitan Lumber Co., Newark, N. J.:

Ship us transit car containing:

2,000 ft. 8/4 No. 1 White Pine Cuts..
3,000 ft. 5/4 No. 1 White Pine Cuts.
5,000 ft. 4/4 No. 1 White Pine Cuts......

"Terms 21/2% 15 days-90 days net.
"Inspection allowed on this car.
"Mark invoice.

...60 00 .....55 00 ..48 00

"Burn & Crump, per J. Burn. "Accepted. Jos. Kerr."

A reasonable time for delivery would have been a month to six weeks. The lumber not having been delivered, on July 6, 1917, plaintiffs inquired of the defendants about the failure to deliver, and the next day the defendants replied they had received no such order. The lumber was never delivered. The court found the retail market value of this lumber in Bridgeport on July 6, 1917, was $374 greater than the contract price, and rendered judgment for that amount. The court further found:

(9) That to entitle the purchaser of lumber to a wholesale price for the same, it would be necessary that such purchase be for an amount of at least one-half carload of each lot of lumber, to wit, about 10,000 feet or more.

wholesale price for the lumber purchased by them by reason of the fact that it included three separate lots of 2,000, 3,000, and 5,000 feet respectively.

(10) The plaintiffs were not entitled to a

the place of delivery other than appears upon (11) No express agreement was made as to Exhibit C, but by a previous course of dealing the plaintiffs had purchased from the defendant a quantity of lumber as appears by Exhibit A. Under this contract the defendant had delivered the lumber to the plaintiffs in Bridgeport.

Samuel E. Hoyt and William A. Bree, both of New Haven, for appellant. Henry E. Shannon and Frank L. Wilder, both of Bridgeport, for appellee.

GAGER, J. (after stating the facts as above). [1] This case was left to the trial court upon very meager testimony on the part of the plaintiffs and none whatever on the part of the defendants. The appeal is based on claimed errors in the finding, errors in rulings on evidence, and errors in conclusions of law. The action being for damages for failure to deliver a quantity of lumber, the first question is where was the lumber to be delivered. The court found

Action to recover damages for failure to deliver lumber according to contract, brought to the court of common pleas for Fairfield county and tried to the court. Judgment for the plaintiff, from which the defendant appeals. Error, and case remanded. From the finding the following material it was to be delivered in Bridgeport, and this facts appeared:

The plaintiffs were carpenters and builders in Bridgeport, Conn. The defendants were in the wholesale lumber business in Newark, N. J. May 7, 1917, the plaintiff gave defendant's agent in Bridgeport an order accepted by the agent, as follows:

conclusion of fact is warranted by the evi-
dence. The contract was in writing and dat-
ed at Bridgeport, and the parts material to
this action are "Ship us transit car con-
taining," and "Inspection allowed on this
car." The provision for inspection is not
conclusive, for unless the buyer has pre-

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
107 A.-39

viously examined the goods he must in all men. He testified that these price books cases have a reasonable opportunity for ex- were handed to the salesmen; none of them amination. General Statutes, § 4713. The were prepared by the salesmen; he did no question then is whether the words "Ship work of preparation whatsoever; did nothus transit car," in connection with the ing in the figuring of costs to determine place where the order was given, which was the reasonable value of lumber at the pethe plaintiff's place of business, constitute riod in question. Further, the witness did a contract, express or implied, designating not state any knowledge, information, or Bridgeport as the place of delivery; for experience with reference to prices other than otherwise, and under the Sales Act (Laws as to retail prices obtained solely from this 1907, c. 212), the seller's place of business price sheet prepared and given to him by his was the place of delivery. General Statutes, employer. Such knowledge and information § 4709. There was no evidence as to the alone does not qualify a witness to testify as meaning of the term "transit car" in the to value generally, or permit him to consult lumber business, and the court construed the this price sheet to refresh his memory. He words "transit car" as meaning loaded and has no knowledge or memory to be refreshed. on the way to Bridgeport, and that therefore The sheet itself would be inadmissible as the only definite place possible to be ascer- hearsay. It is none the less hearsay because tained from the contract was Bridgeport. the attempt is made to use it through the We cannot say that the court, in the ab- witness, who knows nothing more than its sence of any information other than that contents. The witness did not qualify himcontained in the order, reached an erroneous self to testify to values generally in Bridgeresult. The result conforms to a similar re- port. The objection taken was, in substance, sult reached in Stock v. Towle, 97 Me. 408, that the witness was not giving or professing 54 Atl. 918, although in this latter case the to give an opinion of his own, but was merepoint was identification of goods ordered and ly giving a price list of the Burrett Company. not place of delivery, and the goods appeared The testimony based on this price sheet havto have been tendered to the buyer at the ing been given against objection, when later conclusion of the transportation which was it more clearly appeared that the witness the location of the buyer. Harlow v. Par- did not pretend to any knowledge except son's Lumber & Hardware Co., 81 Conn. this sheet, prepared by some one else, and 572, 71 Atl. 734, is also instructive on this in the production of which he took no part, point, and seems to confirm the conclusion motion was made to strike out this testiof the trial court in the present case. mony for the reasons stated above. The objection should in the first place have been sustained, and later, when the testimony was in, the motion to strike out should have been granted. The objection is not that the sheet was prepared by some one else, but that it did not refresh the witness as to any facts he otherwise knew.

Objection is also taken to the finding that there was a refusal to deliver the lumber on or about July 6, 1917, and that a reasonable time for delivery was from four to six weeks from May 7th, the date of the order. The evidence clearly warrants these conclusions of fact, and no special discussion is necessary.

The defendants ask for a correction of paragraphs 9 and 10 of the finding, which are, in effect, that the sale was a retail transaction and therefore damages should be assessed on the basis of retail prices. The evidence upon which to base such a finding does not, upon a careful examination, seem conclusive. But, as for reasons hereinafter stated, there must be a new trial, we will pass over this question, as it may be more thoroughly investigated upon another hearing.

[2-4] The third and fourth reasons of appeal relate to rulings on the admissibility of testimony of the witness Moore, the only witness as to value and the amount of damages. Moore's testimony was solely as to retail prices of lumber charged by the firm of which he was a salesman. He was put on as an expert; his only means of information testified to was the possession upon the witness stand of a price book of the A. W. Burrett Lumber Company, located in Bridgeport, which price book was the reg

"An expert may testify to value, although his knowledge of details is chiefly derived from inadmissible sources, because he gives the sanction of his general experience." National Bank of Commerce v. New Bedford, 175 Mass. 261, 56 N. E. 290.

Here the witness disclosed no general experience; he sold only at prices made by his In Stephen's employer, and that was all. Digest of Evidence, § 136, quoted with approval in Curtis v. Bradley, 65 Conn. 107, 31 Atl. 593, 28 L. R. A. 143, 48 Am. St. Rep. 177, it is said:

"The witness may also refer to any such writing made by any other person, and read by the witness at the time aforesaid, if when he read it he knew it to be correct."

In Erie Preserving Co. v. Miller, 52 Conn. 446, 52 Am. Rep. 607, it is said:

"It is a well-settled rule that a witness may refer to memoranda made by himself or by others for the purpose of refreshing his memory, but it must be for the sole purpose of refreshing his memory, not for the purpose of gaining

(107 A.)

See, also, along the same lines, Town of Norwalk v. Ireland, 68 Conn. 13, 35 Atl. 804, Wigmore on Evidence, §§ 719, 758, 759. With the testimony of Moore excluded, there no evidence before the court upon which to base damages, and none should

was

have been assessed.

There is error; the judgment is reversed, and the case is remanded to be proceeded

with according to law.

The other Judges concurred.

(94 Conn. 7)

CHIULLA DE LUCA v. BOARD OF PARK
COM'RS OF CITY OF HARTFORD.

Case Reserved from Superior Court, Hartford County; William S. Case, Judge.

Proceedings by Giuseppina Chiulla de Luca for compensation for the death of her husband, opposed by the Board of Park Commissioners of the City of Hartford. From the findings and award of the Compensation Commissioner taken to and reserved by the superior court for the advice of the Supreme Court of Errors, defendant appeals. Superior Court advised to affirm award.

The finding shows that on July 30, 1918, the deceased was employed by the defendant in Colt Park, in the city of Hartford, in raking leaves. While so employed, a thunder storm of considerable violence arose, and he and a fellow workman took shelter While the deceased was thus being sheltered, the tree was

(Supreme Court of Errors of Connecticut. July under a nearby tree.

31, 1919.)

1. MASTER AND SERVANT 417(7)-WORK- struck by lightning, and he was instantly MEN'S COMPENSATION COMMISSIONER's killed. No other shelter had been provided

FINDINGS-REVIEW.

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An appeal to the superior court from the finding and award of the compensation commissioner is an original application invoking the exercise of judicial power, and if finding and award are within the limits of his powers, and

are not so unreasonable as to justify judicial

interference, his decision must stand.

2. EVIDENCE 1-JUDICIAL NOTICE.

To take judicial notice and apply it to the decision of a case is a right which appertains to every court from the lowest to the highest. 3. EVIDENCE 1-"JUDICIALLY KNOWN."

The true conception of what is "judicially known" is that of something which is not, or rather need not be, unless the tribunal wishes it, the subject of either evidence or argument.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Judicial Notice.]

4. MASTER AND SERVANT 415-COMPENSATION COMMISSIONER TAKING NOTICE OF SCIENTIFIC AUTHORITY.

The compensation commissioner had the power to take notice of scientific authority and dicta in reaching the conclusion complained of.

for the deceased, and in seeking partial protection from the tree he was doing a natural thing and one which had hitherto been practiced under the employment of the defendant in similar circumstances.

tific authority to the effect that there is a

There is a clear preponderance of scien

greater danger under a tree or in the open than when protected in a house. This is shown by statistics and by authoritative scientific dicta.

Notice is taken of the commonly known fact that nearly all of the persons in a community such as Hartford are protected by dwelling houses, business blocks, or factories in time of a violent thunder shower, and that the injured workman was subject to a greater hazard than that experienced by the community at large.

The plaintiff is the widow of the deceased, and was dependent upon him for support at the time of his death.

Robert P. Butler and Andrew J. Broughel, both of Hartford, for appellant.

Ralph O. Wells, of Hartford, for appellee.

5. MASTER AND SERVANT 417(7)-Work- RORABACK, J. (after stating the facts MEN'S COMPENSATION COMMISSIONER'S as above). The defendant contends that the compensation commissioner erred in finding that

FINDINGS-REVIEW.

The finding of the compensation commissioner that in case of a thunderstorm "there is greater danger under a tree or in the open than when protected in a house" must stand; it being consistent with the evidence and not contrary to reason.

6. MASTER AND SERVANT 375(1)-WORKMEN'S COMPENSATION-DEATH BY LIGHTNING.

A park workman who obtained shelter under

a tree during a violent thunderstorm and was killed by lightning while waiting to resume his work held injured in the course of his employment, so as to entitle his widow to compensation for his death.

"There is a clear preponderance of scientific authority to the effect that there is greater danger under a tree or in the open than when protected in a house. This is shown both by statistics and by authoritative scientific dicta."

The question presented by this assignment is one of fact. In passing upon this proposition it is of importance to notice some of the principles which direct the course of the proceedings before a compensation commissioner. This court has said:

"He may hear the applicant at his residence. He proceeds to hearing without pleadings and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

without regard to the ordinary rules of evidence. He may make his inquiry through oral testimony or written and printed records best calculated to ascertain the substantial rights of the parties."

[1] An "appeal" to the superior court from the finding and award of the commissioner is an original application invoking the exercise of the judicial power of the superior court in order to determine whether the findings and award of the commissioner are so unreasonable as to justify judicial interference, and whether they are within the limits of the powers vested in him. If they meet this test, the decision reached by the commissioner must stand; otherwise his award may be set aside by the superior court. Powers v. Hotel Bond Co., 89 Conn. 143, 148, 149, 93 Atl. 245.

[2] To take judicial notice and to apply it to the decision of a case is a right which appertains to every court of justice, from the lowest to the highest, and may be exercised by this court. Arthur v. Norfield Congregational Church, 73 Conn. 731, 49 Atl. 241.

[3] Judicial notice, in its appropriate field, displaces evidence, since, as it stands for proof, it fulfills the object which evidence is designed to fulfill, and makes evidence unnecessary. Brown v. Piper, 91 U. S. 37, 43, 23 L. Ed. 200; Commonwealth v. Marzynski, 149 Mass. 68, 21 N. E. 228. The true conception of what is judicially known is that of something which is not, or rather need not, unless the tribunal wishes it, be the subject of either evidence or argument— something which is already in the court's possession, or at any rate is so accessible that there is no occasion to use any means to make the court aware of it. State v. Main, 69 Conn. 136, 37 Atl. 80, 36 L. R. A. 623, 61 Am. St. Rep. 30.

"The doctrine of judicial notice is not a hard and fast one, but is modified by judicial discretion, the courts not being bound to take judicial notice of matters of fact, whether they will do so or not being dependent on the nature of the subject, the issue involved, and the apparent justice of the case." City of St. Louis v. Niehaus, 236 Mo. 8, 16, 139 S. W. 450, 452.

[4] It is clear that the compensation commissioner had the power to take notice of scientific authority and dicta in reaching the conclusion complained of.

[5] We do not decide that there is greater danger under a tall tree in a thunder shower than in other places, but we have no hesitation in holding that the commissioner did not find this decisive fact without substantial evidence.

Thus in Appleton's American Encyclopedia, vol. 10, p. 463, it is stated that

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See, also, Paul Burt's "First Steps in Scientific Knowledge," p. 52.

In Harper's Magazine, vcl. 41, p. 33, a tall tree is portrayed with electricity flowing from the highest point of the tree to the ground. This illustration is designated "The Natural Lightning Rod." This illustration appears in an article entitled "The Mysteries of a Thunder Shower," which was written by Jacob Abbott, a famous juvenile writer and educator.

To repeat: The compensation commissioner has found that

"There is a clear preponderance of scientific authority to the effect that there is greater danger under a tree or in the open than when protected in a house."

This finding should stand, as it is not contrary to reason and is consistent with the evidence.

[6] The remaining reasons of appeal present the claim that as a matter of law under no circumstances can death by lightning constitute a personal injury for which an allowance can be made under our Compensation Act.

If the place under the tree were the more dangerous, the fact that the deceased chose it as the place of refuge from the storm and that he was injured at this place does not prevent recovery. The act of seeking and obtaining shelter arose out of, that is, was within, the scope or sphere of his employment and was a necessary adjunct and an incident to his engaging in and continuing such employment. Obtaining shelter from a violent storm in order that he might be able to resume work when the storm was over was not only necessary to the preservation of the deceased's health, and perhaps his life, but was incident to the deceased's work, and was an act promoting the business of the master, L. R. A. 1916A, 348.

See, also, Richards v. Indianapolis Abat"Dangerous is it therefore to take shelter un- toir Co., 92 Conn. 277, 102 Atl. 605, where

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