Long v. Richmond

McLennan, J. : The relation of master and servant only exists where the person sought to be charged as master for the act of a servant had. the light of control over him at the time the injury sued for happened ■or expressly or tacitly assented to the rendition of the particular services by him. In the case at bar • the defendant had not employed Eckert, did not know that he was in any manner assuming to act for him, and he had not, expressly or tacitly, assented to the rendition of any services by him in respect to the ponies. Not. only so, but, according to the undisputed evidence, what Eckert did was in violation of the express instructions given by the defendant to his coachman, which were communicated to Eckert. It would seem to be elementary, as a general proposition, that the ■selection of a servant is essential to responsibility for his acts by a master. Wood, in his work on Master and Servant (2d ed. § 304), lays down the rule as follows: “ In order to render a person liable for. the act of another, the relation of master and servant must exist. That is,, at the time when the injury happened, the person through whose . instrumentality it was inflicted must have been engaged .in doing an ,'act-fof-the person sought to be charged with liability. He must have been engaged in his business with his assent, express or implied, and must not at the time have been acting for himself or as the [469] servant of some other person. It is not necessary that any actual employment should exist or that any compensation should be paid or expected for the service; it is enough if he was in fact rendering the service with the assent of the person sought to be charged, either express or implied.” In Wood v. Cobb (13 Allen, 58), which was an action to recover damages for a personal injury received in consequence of the neglect of defendant’s servant in driving against the plaintiff, it appeared that the defendants, who were dealers in fish, employed a truckman for a certain sum to deliver fish each Friday to their customers. The truckman, being sick, told his servant to get help if necessary, and accordingly the servant of the truckman procured the defendant’s servant, with their assent, to drive one team and deliver the fish, and while so doing he drove against the plaintiff and thereby caused the "injury complained of. It was held that the defendants were not liable because the driver of the truck was not at the time of the accident in the employment of the defendants, and was in no way subject to their command or control. In Goodman v. Kennell (3 C. & P. 167) the plaintiff sustained an injury through the negligence of defendant’s servant while riding his master’s horse in doing an errand for him. It appeared that the servant had been instructed to do the errand on foot, and that he took the horse without any authority from or knowledge of the master, and it was held that the plaintiff could not recover. Pabk, J., in writing the opinion of the court, said, if a recovery could be had in such case, “ every master might be ruined by acts done by his servant without his knowledge or authority.” In Weldon v. Harlem R. R. Co. (5 Bosw. 576) the plaintiff was injured by reason of the escape of the defendant’s horses from the control of the servant in charge of them, because they were struck by another servant of the defendant who had no authority or control over them. It was held that no recovery could be had. We think the rule stated by Wood in his work on Master and Servant (2d ed. § 281) is correct: “ In order to be held chargeable for the acts of another, the person sought to be charged must at least have the right to direct such person’s conduct and to prescribe the mode and manner of doing the" work, and the person for whose acts he is sought to be charged must, at the time when the act complained of [470] was done, not only have been acting for him, but also must have been «authorized by him, either expressly or impliedly, to do the actP In the case at bar Eckert, at the time of the accident, ha,d not been authorized by the defendant, either expressly or impliedly, to act for him. He had. never acted for him before. The defendant liad no knowledge that Eckert was then assuming to act for him, but, on the contrary, as we have seen, what he did was in violation of the defendant’s express commands. If, under the circumstances, the defendant is liable for the acts of Eckert, he would have been ■equally liable for the act of any other person or any number of persons whom his assistant coachman might have permitted to take •charge of the ponies. We can conceive of no rule of law or of equity which will permit a servant, in violation of his master’s instructions and without his knowledge or consent, to allow other .persons to do his work which he is employed to do, without any necessity therefor, and thus make the master liable for the negligent acts of such other persons. It is well settled that if a person leaves his horse in charge of a ■■servant, and the servant uses the horse for his own private purposes Without the knowledge of the master, the master is not liable for the. negligent acts of the servant while so engaged. In other words, the master is protected by the rule adverted to, against the negligent management of his horse by the servant while not engaged in the master’s business. It would seem equally reasonable that a master ¡should be protected against the acts of persons not employed by bim, but who are permitted by his servant to drive such horse in violation of the master’s instructions, although for the master’s purposes. The case of Althorf v. Wolfe (22 N. Y. 355) is not an authority for respondent’s contention. In that case the defendant directed bis servant to remove snow and. ice from the roof of his house, and ¡the servant permitted a stranger to accompany him to the roof and aid in removing the snow. B'y the negligence of the person so permitted to go upon the roof a traveler upon the. street was injured, and if was held that a recovery could be had for the injuries sustained. But in that case stress is laid upon the fact that the defendant had given him (his servant) general directions to throw the snow from the roof of his house, enjoining no caution [471] and suggesting no mode of doing it, to prevent injury, nor placing the servant under any restriction against procuring and in the worhP Stress is also laid upon the fact that the servant introduced the person whom he had procured to assist him into the defendant’s house for that purpose, without objection from those having charge and control of it. The court said: “ Had Cashan (the person •employed to assist the servant) gone upon the roof of the defendant’s house without the knowledge or authority of the defendant or his family, and injured a passer-by by throwing snow and ice upon him, nobody would pretend that the defendant would be liable; but the •case assumes an entirely different aspect when it is conceded that he was there at the solicitation of Fagan (the servant), assisting him in a work that the defendant had directed to be done, and with the knowledge and assent of the defendant’s family.” Again, the court said: “ If they (the defendant’s family) knew, and assented to his (Cashan’s) being there, it was equivalent to knowledge and assent on the part of the defendant. If not brought on, he was allowed to be on the premises by the owner, and the latter is charged with knowledge that he was engaged in the particular service, to which he interposed no objection or dissent. I suppose that if the wife of the defendant, in the absence of the latter, had ordered Cashan to assist Fagan in the work, the defendant would have been responsible. This case shows that he was not there in hostility to the wishes and intention of the defendant’s household, but in accordance with them; and, under the circumstances, it ■should hardly be allowed the defendant to say: 1 It is true I ordered the work to be done, placing no restrictions on my servant against •engaging assistance; my family and household knew that Cashan was aiding him and tacitly assented to it, but as I did not know or expressly authorize him to enter my house and engage in my service I ought not to be liable.’ ” In the case at bar the defendant did place restrictions upon his servant against engaging assistance. The instructions were to ride the chestnut pony and lead the gray to and from the grounds. Neither the defendant nor any member of his household knew that Eckert was to ride the gray pony, or have anything to do with taking him to or from the polo grounds. If it had been necessary for the defendant’s assistant coachman, in order to manage the [472] ponies, to employ assistance, the person so employed would undoubtedly have become the servant of the defendant, and he would unquestionably have been liable for his negligence, but there is no evidence tending to show that assistance was necessary, or that the assistant coachman could not himself without difficulty have taken the ponies to and from the polo grounds. The case of Marks v. Rochester R. Co. (146 N. Y. 181) is authority for the proposition that a person assisting a servant under the circumstances disclosed by the evidence in this case cannot recover against the master for injuries sustained while so employed. While that . was an action brought by the person assuming to assist the defend-' ant’s servant, and, therefore, in that respect differs from the case at bar, it will be observed that the decision is based upon the proposition that the plaintiff was not a servant of the defendant, and for that reason it was held that the defendant was not liable to him for the injuries which he sustained. The decision, as applied to the facts in this case, is equally authority for the proposition that Eckert was not the servant of the defendant, and if so it must follow, as matter of course, that the defendant was not liable even to' third parties for his acts, because, as we have seen, the first requisite in such a case is that the relation of master and servant should exist. The conclusion is reached that Eckert, at the time in question, was not the servant of the defendant, and that the defendant was in no way. responsible for his acts under the circumstances disclosed by the evidence in this case. It follows that the judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide event. Adams, P. J., Williams and Hiscock, JJ., concurred; Spring, J., dissented in opinion.