Appeal from Trial Term.
Action by Joseph Wallace, an infant, by John J. Wallace, his guardian ad litem, against the John A. Casey Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.
[116 N.Y.S. 396] Appeal by the defendant from a judgment, entered on the verdict of a jury, and from an order denying a motion for a new trial. The action is for negligence. It appeared that the plaintiff accompanied his uncle, a lad 12 years of age, who was sent by the plaintiff's mother from their home to the defendant's factory, a distance of 6 blocks, for firewood; that the uncle gave the defendant's employe, Murtha, a nickel to get a barrel for him from the loft of a shed abutting upon the street, and that Murtha threw or dropped from the window of the loft an empty barrel, which fell against the plaintiff, then but 3 years of age, inflicting a serious injury. The uncle testified that he did not know that the plaintiff had followed him or was present until the accident happened. The plaintiff's mother was not called as a witness, and he offered no evidence to show what care was exercised by her as his custodian, or how he came to be allowed to accompany or follow his uncle. It appeared that it was customary for the poor people in the neighborhood of the defendant's factory to gather firewood, empty rosin barrels, from the factory yard; and that sometimes the workmen helped them to get barrels from the loft of the shed. There was nothing to show that the defendant adopted that method to get rid of the barrels; the evidence indicates that they were of value; the workmen were forbidden to take pay for them; the money paid appears to have been given the servant for his own; and the case went to the jury on the theory that, so far as the defendant was concerned, the act was purely charitable. The defendant's evidence tended to show that the accident did not happen on its premises, or that, if it did, it was during the noon hour, and that Murtha was induced by the payment of five cents to return to the loft, after he had quit work, and to throw out the barrel. The court submitted three questions to the jury, viz.: (1) Did the accident happen as claimed by the plaintiff? (2) Was Murtha's act in throwing out the barrel done within the line of his employment and the scope of his authority? (3) Did the mother's negligence in allowing him to go unattended contribute to the accident? In respect to the latter proposition, the court charged the jury that the mother was negligent, but that such negligence would not defeat a recovery in case the accident would have happened just the same had the plaintiff been attended by a suitable person. A motion to dismiss was made at the close of the evidence on the grounds, inter alia, that Murtha's act was not done in the line or scope of his duty, and that it was negligent in law for the plaintiff to be where he was, unattended. At the close of the charge, the plaintiff's counsel requested the charge that " the admission of the superintendent that the workmen were allowed to throw barrels out to persons calling for them is an admission [116 N.Y.S. 397] of the defendant," to which the court replied, " He in that respect stood for the defendant. I charge that." The superintendent had made no such admission.
John C. McGuire (E. J. Connolly, on the brief), for appellant.
William W. Wingate (Andrew F. Van Thun, Jr., on the brief), for respondent.
Argued before WOODWARD, JENKS, GAYNOR, RICH, and MILLER, JJ.
The exception to the charge that the admission of the superintendent was an admission of the defendant presents reversible error, because, first, the superintendent had not made it, and, second, if he had, it was not the admission of the defendant-a proposition which I need not discuss. The error was harmful. The superintendent had testified that the men were allowed to give away the barrels to poor people, a very different thing from being allowed to throw them out of the window into the street. Upon the most favorable view of this case to the plaintiff, it was a question of fact whether Murtha's wrong was committed in the course of his employment as such. The jury must have understood from the charge, excepted to, that he was in fact authorized by the master to do the negligent thing complained of.
But we should not send this case back for a new trial without deciding the main question presented by the record before us, lest a wrong inference be drawn. The point is raised, but none too plainly, by the motion to dismiss. In the absence of explanation, it would seem plain, as the court charged the jury, that the mother was negligent in allowing a three year old child to wander unattended six blocks from home; but the court submitted the case to the jury on the theory, not excepted to, that the plaintiff was a passer-by in the street, and that, as he would not have been chargeable with negligence if he had been an adult, the mother's negligence was not to be imputed to him. But he was not merely a passer-by in the street; he was, in fact, at the place of the accident because of the errand of the older lad, and was waiting for that errand to be done. Had he arrived at years of discretion, he would have known that Murtha was about to drop the barrel from the window, and would have been negligent in getting in the way of it. Hence it would seem to be plain that, upon the theory that the plaintiff was unattended, the mother's negligence was to be imputed to him. However, I do not credit the statement of the older boy that he did not know that the plaintiff was with him until the latter was hurt. It seems to me that the more rational view to take of the evidence is that the plaintiff was intrusted to the custody of the older boy, in which case the latter's negligence is to be imputed to him. Hennessey v. Brooklyn City R. R. Co., 6 A.D. 206, 39 N.Y.Supp. 805; Mangam v. Brooklyn R. R. Co., 38 N.Y. 455, 98 Am. Dec. 66; Lannen v. Albany Gaslight Co., 44 N.Y. 459.It is difficult to escape the conclusion that the older boy, knowing that the barrel was to be dropped from the loft, was negligent for allowing the plaintiff to get in the way of it; and there is certainly more reason to imputethe [116 N.Y.S. 398] negligence to the custodian, immediately contributing to the accident, than the more remote negligence of the parent in allowing the child to go unattended. It is true that that view was not submitted to the jury, and is not presented to us by an exception. I refer to it to show that the negligence, either of the mother or of the immediate custodian, is to be imputed to the plaintiff, and that he was identified with the errand, resulting in his injury, and with those receiving the charity. He was not an outsider, a mere passer-by in the street. While the doctrine of identification, as broadly applied to the question of imputed negligence in Thorogood v. Bryan, 8 C. B. 115, has been repudiated ( Little v. Hackett, 116 U.S. 366, 6 Sup.Ct. 391, 29 L.Ed. 652), it seems to me that, in a restricted sense, it does bear on the question of the defendant's responsibility to the plaintiff, as in Waite v. N.E. Railway Co., El. Bl. & El. (96 Eng. Com. Law) 719-728.
We come, then, to the interesting and novel question whether the defendant is answerable to the plaintiff for the wrongs of the former's servant, committed in the act of rendering gratuitous service to those with whom, and in a transaction with which, the plaintiff was identified, assuming that the servant was authorized to render the service. I cannot find that the point has been decided. The cases dealing with the liability of charitable corporations for the acts of servants are analogous, but the reasons commonly given for nonliability to the recipients of the charity in that class of cases are not applicable, although in reason a charitable corporation and an individual doing charitable work ought to be in the same class, respecting the application of the rule respondeat superior; and the reasons given by the courts for the decision in those cases do not preclude a reason applicable to both. See Kellogg v. Church Charity Foundation, 128 A.D. 214, 112 N.Y.Supp. 566.
The cases of passengers riding gratuitously may be thought analogous, but they belong to a class by themselves, Certain duties of the carrier spring from the relation of carrier and passenger, once that relation is found to exist, and the cases resting upon the negligent discharge of a duty cast upon or assumed by a party do not involve the rule respondeat superior, although some of the opinions appear to assume that they do. Once the duty is shown, it matters not by what agency the party attempts to discharge it. Ever since the leading case of Coggs v. Bernard, 2 Ld. Raym. 909, one undertaking gratuitously to discharge a duty has been held accountable for the manner of its discharge, though the fact that the service is gratuitous may be considered on the question of the degree of care required. Shiells v. Blackburne, 1 H. Bl. 159. It should be said in passing that the dictum in Lannen v. Albany Gaslight Co., 44 N.Y. 465, supra, is supported by references which deal with the principle of Coggs v. Bernard, and not with the rule respondeat superior. One of the leading cases in this country on the liability of a common carrier to a gratuitous passenger was decided on the principle of Coggs v. Bernard ( Phila. & Reading R. R. Co. v. Derby, 14 How. 468, 14 L.Ed. 502), and it would seem that what was said in the latter case respecting the rule respondeat superior was unnecessary to the decision, because, if the principle of Coggs v. Bernard applied, it was unnecessary to invoke that rule.
[116 N.Y.S. 399] This case is not altogether unlike the case where a servant is temporarily loaned, it matters not for how brief a time. See Wood v. Cobb, 13 Allen (Mass.) 58; Hasty v. Sears, 157 Mass. 123, 31 N.E. 759,34 Am.St.Rep. 267.The master in this case allowed the servant temporarily to serve others, much as the engineer in Olive v. Whitney Marble Co., 103 N.Y. 292, 8 N.E. 552, volunteered to assist those testing the boiler; if the master had actually assented to the rendering of that service, the case would have been the same; but perhaps this case has to be distinguished by the fact that the master did not part with the control of the servant, at least upon a view of the evidence which it was possible for the jury to take; and we may assume for the purposes of this case that the master would have been liable to a passer-by in the street, injured by Murtha's negligent act.
However, the defendant has been held liable for Murtha's wrong, not for his own breach of duty, and the question is whether the rule respondeat superior is to be applied as between the recipient of a charity and the donor. The maxim, " Qui facit per alium, facit per se," frequently quoted in connection with that rule, does not solve the difficulty, because, strictly interpreted, it only applies to an act in fact, and not impliedly, authorized, whereas the rule is applied to acts done without authority and even in disobedience of positive orders. Under the Roman law, from which the rule was borrowed, the master was personally liable only for the wrongs of his slave committed by his orders or which he could have prevented. 1 Bevan on Negligence (2d Ed.) 687, and references. Wrongs are rarely authorized in fact; but, under the rule as now applied, the master is not permitted to deny that the act was done by his order, if done within the course of the employment in the furtherance of the master's business. We must, then, ascertain the reason for the extension of the rule; but we find upon examining the cases that judges have usually contented themselves with a statement of what they deemed to be the rule, or have stated the rule as the reason for it. In one of the earliest reported English cases on the subject (Turberville v. Stampe, 1 Ld. Raym. 264), Lord Holt, who delivered the judgment in Coggs v. Bernard, assigned as a reason for holding the master liable on the ground of implied authority that the servant's act was " for his master's benefit." In Barwick v. English Joint-Stock Bank, 2 L. R. (Ex.) 259, said by Sir Frederick Pollock to be a classical authority (Pollock on Torts, 75), Willes, J., thus states the rule:
" The general rule is that the master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master's benefit, though no express command or privity of the master be proved."
That statement of the rule has frequently been quoted and referred to with approval. See British Mutual Banking Co. v. Charnwood Forest R. Co., L. R. Q. B. (1887) 715; Limpus v. London General Omnibus Co., 1 Hurlst. & C. (Ex.) ...