Before KALODNER, FORMAN and SMITH, Circuit Judges.
These actions, arising out of an assault by the defendant, Bryan Webb, upon the Plaintiff, J. Patrick Dowd, with a four-pronged pitchfork, inflicting severe injuries later detailed, were brought in the District of New Jersey. Dowd is a citizen of Connecticut. Webb is a citizen of New Jersey. The other defendants, Stanley Savage, and Charles J. Hesse, Jr. and Michael J. Stavola, trading as Beacon Stables, a New Jersey partnership, are also citizens of New Jersey. Jurisdiction is founded upon diversity of citizenship.
The assault in question was committed in Rhode Island, and under the New Jersey Conflicts of Law rule Rhode Island law is applicable. Marshall v. George M. Brewster & Son, Inc., 37 N.J. 176, 180 A.2d 129, 95 A.L.R.2d 1153 (1962).
At trial, the court dismissed as to Hesse, Stavola and Beacon Stables at the close of the plaintiff's case, and as to Savage at the close of all of the evidence. A judgment of default was entered against Webb in the amount of $18,677.00*fn1
The plaintiff prosecutes these appeals claiming that the complaints against Hesse, Stavola, Beacon Stables and Savage were erroneously dismissed, and that the amount of the verdict against Webb was inadequate.
The facts pertaining to the dismissed actions, viewed most favorably to the plaintiff, are as follows:
The assault occurred on March 6, 1961, at Lincoln Downs Race Course in Lincoln, Rhode Island. Webb was a race horse trainer. He operated what he termed a "public stable", i.e., one in which he trained horses for more than one owner.He employed his own men to do the work and his foreman supervised it. He received $10.00 per day for training a horse plus 10 per cent of the horse's purses, if any. His services included feeding, caring and entering the horses in such races as he thought advisable. The owner paid for transportation, veterinary fees, jockey fees, blacksmith fees and his own license fee. Webb made all decisions concerning the services rendered. All equipment used was owned by him or leased to him.
Webb was assigned 14 stalls by the Lincoln Downs Race Course and he permitted Bernard Dowd, brother of the plaintiff, to use one of them to stable his horse. In return Bernard was to help Webb with his work. The remaining stalls were used by Webb to house horses trained by him, including those wholly or partly owned by the other defendants.
On the morning of March 6 Bernard came to the stables with the plaintiff who was then performing odd jobs around the stable area. Bernard noticed another groom rubbing down two horses assigned to him. When he sought to ascertain the reason from Webb, the latter expressed dissatisfaction with his work. Webb said that he had three horses coming in and required the stall allotted to Bernard. Bernard protested that he had "no place to go". Webb, using "vile language", grabbed Bernard's lapel or jacket, and said, "If you two so and so's don't get out of here and get your horse out of here I am going to knock the stuff out of both of you." The plaintiff said, "If you think you can do that, step in the stall here with me." As the plaintiff turned toward the stall, Webb stabbed him in the face with a pitchfork, blinding him in one eye, fracturing his nose, destroying his dental bridgework, and lacerating his face.
The plaintiff premises his claim of liability against the other defendants on an alleged master-servant relationship between them and Webb, as their trainer. He contends that Savage and Webb were partners in the ownership of certain horses trained by Webb at Lincoln Downs; and that Webb's acts are imputable to Savage under partnership law.
At trial, Hesse and Stavola (as well as Beacon Stables) sought dismissal on two grounds: (1) that no evidence of a master-servant relationship had been presented, and (2) that assuming a master-servant relationship, Webb's acts were not pursuant thereto. Savage urged that there was insufficient evidence to go to the jury on the question of his alleged partnership with Webb; that no master-servant relationship was shown to exist, and that Webb's acts were outside the purview of either of these alleged relationships.
At the close of the plaintiff's case the trial judge granted the motion of Hesse, Stavola and Beacon Stables to dismiss the ...