Edwards v. Jones

Headnote

Master and servant— When master liable for injury by acts of servant — Negligence.

If the servant, within the scope of his duty, enables another by his assent to injure a third person, the master is liable, but when there is no evidence of such assent there is' no cause of action against the master. Assent in such case will not ordinarily be inferred.

The plaintiff sued in the late marine court to recover $150 damages for injuries said to have been done to his canal boat by the negligence of the defendant.

The complaint, in setting out the cause of action, alleges “ that on or about the 14th day of February, 1882, the plaintiff arrived at the coal yard of the defendant at One Hundred and Twentieth street, East river, with his said canal boat and a cargo of coal, consigned to said defendant. That thereupon, the defendant, his agents, servants and employes commenced to discharge the said cargo of coal from the said canal boat into the said defendant’s yard.” That on the 16th of February, 1882, while unloading said cargo, the coal bucket, by means of which the coal was being removed, fell violently upon the plaintiff’s boat, doing the damage claimed. . The plaintiff then charges that the bucket fell through the negligence of the defendant and his employes, and not by or through any fault on the part of the plaintiff or his employes.

The answer is, in substance, a denial of each and every allegation in the complaint contained, excepting that the cargo of coal was received by the defendant and that he proceeded to unload the same into his yard. The action was tried. Novem

her 9, 1882, before Hr. justice HcAdam and a jury. It appeared by the evidence that the defendant employed a person by the name of Scott to assist the plaintiff’s servants in unloading the boat and that defendant was to pay Scott for such services “ so much a ton.” Scott proceeded to assist the plaintiff’s servants, and during the progress of the unloading Scott left a horse which he had been previously driving in the unloading, and went to the water closet and was absent about ten or fifteen minutes; and after Scott left and while he was absent n .strange man, who was not known to any of the parties -or witnesses and who was not working there, came and took hold of the horse and, under orders from the plaintiff’s servant, started the horse and thereafter lifted a spring and .caused the tub to fall which produced the injury. At the conclusion of the trial the justice-dismissed the complaint, writing the following opinion:

McAdam, J. The person guilty of the negligent act which injured the plaintiff’s boat was not the servant of the defendant, but a volunteer, who, without the defendant’s knowledge, undertook to take charge of the horse during the servant’s temporary absence. If the volunteer had merely assumed charge of the horse no damage would have ensued. But the volunteer went further; he drove the horse and touched the spring which caused the damage. The defendant not having selected the volunteer, is not answerable for his competency or misconduct. In Booth agt. Mister (7 Car. & P., 66) the defendant’s servant allowed a stranger to drive the korse, and the court said: “ As the defendant’s servant was in the cart, I think that the reins being held by another man makes no difference. It was the same as if the servant held them himself.” In Althorf agt. Wolfe ( 22 N. Y., 352 ) the servant and volunteer were both present when the damage was done, and the court, following the case last cited, held that the master was liable. In Simons agt. Miller ( 29 Barb., 420 ) the servant was employed to do a specific act, and the

master was held liable for the negligence of the servant’s son, who acted by the servant’s direction in performing it. The court was careful, however, not to extend the rule further than the necessities of that case required, and said: “ The case would have stood entirely different had the son been employed by the father to do the work generally, which it was the duty of the father, as the defendant’s servant, to perform, and had he while so employed, of his own volition, and without the knowledge or direction of the father, set the fire in question. The son, under such circumstances, being the servant of the father, and not of the defendant, his act would have been chargeable upon the father as master,' and not upon the defendant. The negligent act in that case would have been the act and negligence of the son, and in no sense that of the father, except by mere legal relation; and as the defendant never selected him, nor authorized any one to do so on his behalf, and never intrusted any business to his management or discretion, there could be no ground on which to. charge the defendant with his negligent acts. The court: assigns as a reason for this, that “the legal relation- upon, which the master’s liability rests would in such case be entirely wanting.” It is noticeably wanting in this case.. The master selected his servant and intrusted the work to-him presumably on account of his experience. The volunteer who took charge of the horse during the servant’s temporary absence undertook to experiment with him, and'' made the mistake which the servant’s experience would undoubtedly have prevented had he been present. The plaintiff’s servant assisted in the experiment and is culpable, to a limited extent at least. The evidence failed to show that the defendant did anything which, under, the circumstances, he ought not to have done, or omitted any precaution which a prudent and careful man would or ought to have taken, observed or performed. There was no solid legal ground for holding the defendant liable, and the complaint was properly dismissed.

From the judgment entered upon this dismissal the plain

tiff appealed to the general term of that court, which, on May 22, 1883, affirmed the judgment; and from the judgment entered on that affirmance the plaintiff appealed to the general term of the court of common pleas for the city and county of blew York.