Malloy v. Bohemian Daily

VICKERY, J. I cannot agree with learned counsel that it *439 was necessary to prove that this employee of the defendant in error had authority to employ some one else. In the first place, as I get this case, there was no employment of anybody else. This driver had a duty to perform, and that was to deliver these papers at this corner, and the truck was used for that purpose, and if this bundle had been put in the window of the automobile so as to make ready to do that, it must have been with the connivance and under the instructions of the driver. If he had taken a stick and pushed the bundle out, or kicked it out on the sidewalk, there would be no question but what there would be a liability. Now the mere fact that he used instead of a stick to throw it off, the aid of a boy who was riding with him, would not change it from being the act of the driver — for it must be remembered that it was the driver’s duty to deposit this bundle of papers at this particular place, so I say, that whatever act was done by one of these boys, if the act were done by one of them, was as a matter of fact the driver’s act, and that was simply the means or the medium through which the purpose was accomplished and the driver was acting within the scope of his employment and acting for the defendant in error when these papers were deposited there, and I think there is a question to go to the jury, whether or not there is not a liability, and the court erred in directing a verdict for the plaintiff. Now we are not left to conjecture in this respect. There is a recent case, so on all fours with this case that there can be no misunderstanding of the trend of the court and that is the case of Semper v. American Press, 273 S. W. Reporter, page 186. There could not be a ease more on all fours with the instant case than that case, but irrespective of that case, by an analogy of reasoning, it cannot be possible that an employer that wants to have papers delivered upon a street corner, if its agent, in order to get the thing done more quickly, gets a friend to go with him, and he being at the wheel and driving past the spot, orders the friend to throw these things off, which results in an injury to a person rightfully upon the sidewalk, can escape responsibility on the ground that the one who threw off the bundles of papers was a mere volunteer. It is the act all the time of the employee of the defendant company, in pursuance of his duties, and in no sense is it necessary to show that there was power to employ other persons, — in fact, there has been no employment of other persons. He did the work himself and the other person was only the means through which he did it — it was the instrument which he used, and consequently there was evidence at least to go to- the jury in this case. The judgment of the court below was wrong because there was surely evidence to go to the jury, and I think it should be reversed and remanded to the trial court for a new trial. (Levine_, J., concurs. Sullivan, P. J., not participating.)