Riegler v. Tribune Ass'n

Patterson, J.: In this action, which was brought to recover damages for personal injuries, the plaintiff had a verdict against the defendants, The Tribune Association and one John A. Glennon, and from the judgment entered on that verdict and from an order denying a motion for a new trial, they separately appeal. So far as Glennon is concerned, the case may be readily disposed of. It being proven that the cause of the injuries was the direct act of Glennon, his responsibility was fixed, and there was nothing else left for the jury virtually than to assess damages as .to him. But with respect to the Tribune Association the question arises as to its liability for Glennon’s act. The circumstances under which the plaintiff was injured may be recited briefly. He was a plumber or roofer, engaged in working on the roof of the Herold Building, which adjoins that of the Tribune Association. He was lawfully on that building. In his work he used a plumber’s stove or furnace, in which was a fire to heat a soldering iron. While thus engaged at work benzine was thrown upon him and was scattered about the roof, some of-it coming in contact with the furnace; it was ignited, the plaintiff was enveloped in the flame and was severely burned. Glennon was an employee of the Tribune Association. On the day and immediately before the accident occurred he, in the course of his employment, was engaged in cleaning parts of the machinery and types used by the association in the composing department of its newspaper. Benzine was the substance provided and [326] used for' cleaning and washing matrices, part of the-equipment of certain printing machines. The method of using the benzine seems to have been to take a certain quantity from a large can and put it in a shallow pan, then to take the matrices from the machine and wash them in benzine, after which the matrices were returned to the machine and what benzine was left was to. be taken back and put in another can, that it might be subsequently used for the purpose of cleaning type. Glennon’s instructions.were to use the benzine in that manner. On the day on which the plaintiff was injured, • Glenuon plainly disobeyed his instructions, for, after he had cleaned the matrices by putting them in the benzine contained in the shallow pan, he threw the contents of that pan out of a window overlooking the roof of the Herold Building, and that was done immediately before the plaintiff was burned. It is claimed by the association at the outset that there is no direct proof connecting the injuries to the plaintiff with the benzine that was thrown out of the window by Glenuon. There is no testimony ■of any . eye witness making this direct connection, but there are abundant circumstances from which the jury could infer and were entitled to infer that the benzine which was'ignited by the furnace flame and burned the plaintiff came from the Tribune Association Building and could not have come from any other place at the time of this occurrence. It is argued that the plaintiff’s right of recovery may be maintained upon the proposition that the Tribune. Association is liable in this action without any further proof of negligence than the fact' that.this dangerous substance was thrown or fell or escaped from its building to and upon adjoining property where the plaintiff had a right to be. It is unnecessary to consider that aspect of the case. The action was brought, tried and went to the jury upon the theory of responsibility of an employer for the act of its servant, and there is enough in the record to sustain the verdict on it. The general principle of liability on that theory is very plain. An employer is liable in an action for the negligence of a servant while that, servant is engaged in the business of the master,, “ however, contrary to -the master’s wishes such negligence may be.” The cases are so numerous and the principle is so thoroughly understood, that the master is liable for the negligence of the servant in doing the master’s busi [327] ness, that it is unnecessary to refer at length to the adjudicated cases. The only question here is whether Glennon was engaged in the business of the master when he committed this wrongful act resulting in the injuries to the plaintiff. That he was so engaged seems to be indisputable. He was furnished with the benzine to •clean parts of the machinery, and it was his duty to use that benzine in the shallow pan and to empty it from the pan. His act of emptying the benzine was as much a part of his duty as it was to use it. Instead of pouring it into another can he emptied it out of a window :and it fell upon adjoining property. He was just as much engaged in the course and scope of his employment in doing this as in any other detail of the work he was hired to perform. He was acting "in disobedience of his master’s orders, but nevertheless it was in the [prosecution of his master’s business, and that is the test, and not whether it was done in accordance with the master’s instructions. "What was said in Geraty v. National Ice Company (16 App. Div. 174) may appropriately be repeated here. “ If the act were one •which, continued until the termination, would have resulted in carrying out the object for which the servant had been employed, the master would be liable for whatever negligence might take place •during its performance, although the servant in doing it was not -obeying the instructions of the master, or, although he had deviated from the route (directions) prescribed by the master for the purpose of doing some act of Ms own, but yet with the intention at the .same time of pursuing his master’s business.” Here the evidence shows that the emptying of this pan was in ■order that it might be in tit condition to be put away after Use, and the jury were fully justified in finding that the act of Glennon was committed while he was engaged in the furtherance of his employer’s business. It is claimed that irrelevant testimony of a character prejudicial to the Tribune Association was admitted on the trial. It related to benzine having been thrown from the Tribune Association windows on other occasions, and that the jury were thus allowed to infer that this fluid came from the Tribune Association composing rooms. "That evidence was objected to and should not have been admitted, but the judge instructed the jury to disregard it at the request of -.the defendant’s counsel. That cured the error. (Holmes v. Moffat, [328] 120 N. Y. 159; Marks v. King, 64 id. 628; Platner v. Platner, 78 id. 90; Gall v. Gall, 114 id. 109.) , As there was sufficient to-support this verdict without -that testimony, it cannot , he said' that the jury must have been or, could have been influenced by it. The judgment and order must be affirmed, with, costs. O’Brien, J., concurred; Yah Brünt, P. J., and McLaughlin,. J./ dissented. ■