In the trial of the original case of Wilson v. Barrows in the county court, one of the primary questions was whether the claimant Wilson, when injured, was acting as an employee of defendant Barrows. This was a question of fact. Brown v. BristolLast Block Co., 94 Vt. 123, 108 A. 922. Thereon the court found as follows: "From a consideration of all the evidence we are of the opinion and therefore find that the claimant at the time of his injury was an employee of defendant Barrows and not an independent contractor." No exception was taken to this finding, and the judgment for the claimant was affirmed by this Court. The defendant alleges in his petition for a new trial, in substance that he did not except to the finding quoted for the reason that, through misjudgment, his attorney considered it a conclusion of law and subject to revision on exception to the judgment, without any exception to the finding itself. Solely because the attorney, acting on such alleged misjudgment, failed to take exception, a new trial is now sought.
By his employment the attorney was authorized to take such steps in defending the action as he might deem legal, proper, and necessary; and his acts in that respect, negligent or otherwise, in the absence of fraud, must be regarded as the acts of his client. Babcock v. Brown, 25 Vt. 550, 60 A.D. 290.
The attorney must have known that as to whether the plaintiff was an employee of the defendant at the time of his injury was a question of fact to be determined upon the evidence, and when the court stated its finding in this respect, it did so in language too plain to leave room for reasonable doubt as to what the finding was, or as to its being one of fact. The attorney knew of the finding, and if he wished to take exception thereto he had ample time and opportunity to do so. His neglect to save such exception because he misjudged the nature of the finding is unavailing. The case of Morgan v. Houston, 25 Vt. 570, is much in point. There, one ground of surprise, on the *Page 28 part of the petitioners, was that the court ruled the law differently from what they expected, and that the ruling was affirmed by this Court. The court said this could never be the basis of a petition for a new trial; that it was a surprise which every day overtakes everybody concerned in the administration of civil justice; and that human opinion infinitely varies, and always will. Nor is the present case materially different from that of Halloran v. New England Tel. Tel. Co., 95 Vt. 285, 115 A. 143. In the original of that case the particular defense was omitted because of counsel's misapprehension of the law; and it was urged on the petition for a new trial that the unsettled and uncertain condition of the law in the respect named afforded a sufficient excuse for such omission. But it appeared that the petitioner had previously made the same point or points in defense of another proceeding, and consequently was under no misapprehension concerning it; and it was held that the latter's failure to communicate the same to its counsel, thereby enabling the latter to raise the questions at the trial, was such negligence as defeated the relief sought, the Court saying that any negligence or other default on the part of the petitioner or his counsel works such defeat.
Petition dismissed with costs.