218 A.D. 816 | N.Y. App. Div. | 1926
I dissent from the affirmance of this judgment as modified. The action was brought by the plaintiff to recover damages alleged to have been caused solely through the fault and negligence of the defendants in employing and maintaining one Thomas Gallagher as their agent and employee in charge of the premises in the capacity of superintendent or janitor, having knowledge and notice on their part that the said Gallagher was of a dangerous, troublesome and vicious nature and also at the time said assault herein was committed said Gallagher was acting within the scope of his employment and instructions given him by the defendants. The learned court at Trial Term submitted specific questions to the jury. The fifth question was: “ Was Tom ' Gallagher in committing such assault acting within the scope of his employment? ” To which the jury answered: “ Yes.” The court set aside the answer to said question as contrary to the evidence and contrary to the weight thereof. In this he was entirely justified, for this brutal and unjustifiable assault, which very seriously injured the plaintiff, was not and could not have been, under the circumstances disclosed, committed within the actual or apparent scope of Gallagher’s employment. As stated in Muller v. Hillenbrand (227 N. Y. 448, 451): “ The janitor, in assaulting the infant plaintiff, was not acting within the actual or apparent scope of his employment. Had the defendant been present he would have had no authority to do what the janitor did and what he could not legally do he could not, in a legal sense, authorize the janitor to do for him. (Poulton v. L. & S. W. Ry. Co., 1867, L. R. 2 Q. B. 534; Pollock on Law of Torts [10th ed.], 97, 98.) The rule of liability of a master for the acts of his servant is tersely stated in Mott v. Consumers’ Ice Co. (73 N. Y. 543, 547). It is that ‘ For the acts of the servant within the general scope of his employment, while engaged in his master’s business, and done with a view to the furtherance of that business and •‘-he master’s interest, the master will be responsible, whether the act be done negligently, wantonly, or even willfully. * * * But if a servant goes outside of his employment, and without regard to his service, acting maliciously, or in order to effect some purpose of his own, wantonly commits a trespass, or causes