221 A.D. 63 | N.Y. App. Div. | 1927
The first of the actions was brought by the infant plaintiff, by his guardian ad litem, to recover of the defendant, respondent, and one Henry Fuchs damages for personal injuries alleged to have been sustained by the infant plaintiff as the result of being struck by a bar of iron alleged to have been negligently thrown by the defendant Fuchs, an employee of the defendant Superior Fire Proof Door and Sash Company, Inc., while in the operation of its motor vehicle. The second action is brought by the father of said infant plaintiff in the first action for loss of services of his infant son and for moneys spent by the plaintiff in endeavoring to cure his said son of the injuries sustained by reason of the negligence of the defendants. The plaintiffs, so far as pertinent to these appeals, allege their causes of action in practically the same maimer.
Before answering, the defendant Superior Fire Proof Door and Sash Company, Inc., moved to dismiss the complaint in each action, “ pursuant to appropriate sections of the Civil Practice Act,” and without stating specifically the grounds upon which the defendant moved. The real ground upon which defendant’s motions were made was that the complaint in each case fails to state facts sufficient to constitute a cause of action. The court at Special Term, in . each action, granted the motion of the defendant and dismissed the plaintiff’s complaint, with permission, however, to serve an amended complaint within ten days after service of a copy of the order appealed from and notice of entry thereof, and upon payment of ten dollars costs.
The infant plaintiff, in his complaint, alleges that the defendant Superior Fire Proof Door and Sash Company, Inc., was the owner
At Special Term and upon this appeal the defendant, respondent, .contends that the act of the driver, Fuchs, in throwing the bar was not within the scope of his employment, and that, therefore, the employer, the respondent -herein, was not hable; that the respondent is not hable for an act of a servant which the employe! himself could not do with impunity. If the respondent is correct in -such contention, then no amendment of the complaint will be of any avail to the plaintiff. In my opinion the respondent is incorrect in its premise that Fuchs, the driver of the car, was acting without the scope of his employment in attempting to frighten away the boys who were attempting to hitch to the back of the defendant’s motor vehicle. I think that the respondent, the employer, would have had a clear right to prevent the boys hitching upon its car, and that Fuchs, the employee of the respondent, was acting within the scope of his employment in attempting to frighten the boys away. In this attempt he threw a bar of iron which accidentally struck the infant plaintiff who was riding in a pushmobile and who was not one of the boys whom the driver was trying to frighten away. In throwing the bar of iron the driver acted willfully. In Muller v. Hillenbrand (227 N. Y. 448), Giannettino v. Weiss (233 id. 674) and in the other authorities
In the case at bar, the defendant Fuchs, the driver of the respondent’s motor vehicle, in taking steps to prevent a trespass thereon by the boys who were attempting to hitch their wagon to it, committed an act of negligence as the result of which the infant plaintiff was injured. I think, under the decisions in Dealy v. Coble (112 App. Div. 296), Hewson v. Interurban St. R. Co. (95 id. 112), Herman v. New York Edison Co. (175 id. 535) and Rounds v. D., L. & W. R. R. Co. (64 N. Y. 129), none of which have been overruled, as claimed by the respondent, by the later decisions, and under the recent decision of this court in Cusack v. Ottinger (218 App. Div. 816), Fuchs was clearly acting within the scope of his authority, and that his negligence is imputable to his employer.
I am, therefore, of the opinion that the complaint states facts sufficient to constitute a cause of action in each case, and that the orders appealed from .should be reversed, With ten dollars costs and disbursements, and the motion of the defendant Superior Fire Proof Door and Sash Company, Inc., should be denied in each case, with ten dollars costs, with leave to said defendant to answer upon payment of said costs.
Finch, McAvoy, Martin and Proskauer, JJ., concur.
In each case: Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to the defendant, respondent, to answer within twenty days from service of order upon payment of said costs.