Cavanagh v. Dinsmore

Davis, P. J.: The plaintiffs intestate while attempting to cross Chatham street was run over and killed by a team and truck of the Adams Express Company, then in charge of one of their drivers. The evidence was sufficient to show that the injury and death were occasioned by the negligence of the driver. Upon examination of the driver, who' was called as a witness for the plaintiff, it appeared that on the evening when the injury and death occurred he had delivered at the branch office of the company at No. 638 Broadway, between Houston and Bleecker streets, a load of merchandise and had then been instructed to proceed with the horses and truck to the stables of the company in Church street and there put. up the truck and horses that on arriving at the corner of Broadway and Canal street he was met by another driver of the defendant’s, with whom he had made an arrangement to that effect during the day, and thence drove eastwardly to Henry street, distant about one mile from the corner of Canal street and Broadway, as a personal favor to his fellow-servant, and took away from there a trunk and valise belonging to his fellow-servant to carry to Eulton street; that while driving through Chatham street toward Broadway the injury to the deceased was occasioned. It was proved, also, that neither of the drivers had asked permission of any of théir superior officers to make use of the truck and horses for the purpose of removing such trunk and valise. Upon proving this state of facts the plaintiff rested, and the defendants moved that the complaint be dismissed, upon the ground that at the time of the injury the defendant’s driver was not engaged in the service of the company but was doing a favor to a fellow-servant. The plaintiff asked the court to submit several questions to the jui-y, which request was refused. The plaintiff excepted severally to the refusals. The court dismissed the complaint. There was no disputed question of fact in this case. The several requests of the plaintiff were based upon the idea that the jury, from the undisputed facts of the case above stated, would be at liberty to reach legal conclusions different from those which rightly attach to the facts, or to imply therefrom other facts touching which no proof was given. We think the court was right in declining to allow the case to gu [468] to the jury upon any of the questions suggested by tbe learned counsel for the plaintiff. Tbe departure of tbe driver from tbe ordinary route to tbe stables for tbe purpose of doing a favor to bis coservant, as stated in tbe evidence, was clearly an unauthorized deviation and not within tbe scope of bis duty. He canuot be said, within tbe authorities, to have been acting in tbe service of tbe defendants while engaged in going for tbe trunk and valise of bis coservant and in taking them to their destination. Tbe act was not only without tbe authority, but without tbe knowledge or consent of tbe defendant or of any superior officer of tbe driver. It is well settled that tbe master is not liable for injuries sustained by tbe negligence of bis servant while engaged in an unauthorized act, beyond tbe scope and duty of bis employment, for bis own or another’s purposes, although tbe servant is using tbe implements or property of tbe master in such unauthorized act. It is not necessary to do more than to cite some of tbe elementary books and leading authorities on this subject. (Higgins v. Watervliet Turnpike Co., 46 N. Y., 23; Isaacs v. Third Ave. R. R., 47 id., 122; Rounds v. Del., Lac. cmd W. R. R., 64 id., 129; Sheridan v. Charlick, 4 Daly, 338; Wright v. Wilcox, 19 Wend., 343; Frazer v. Freeman, 43 N. Y., 566 ; Sherman & Red. on Negligence, 69, § 63; 1 Parsons on Contracts, 87; Storey v. Ashton, L. R., 4 Q. B., 476; Cosgrove v. Ogden, 49 N. Y., 257.) Tbe judgment should be affirmed. Brady and Daniels, JJ., concurred. Judgment affirmed.