99 A.D. 119 | N.Y. App. Div. | 1904
The following is the memorandum of Kellogg, J.:
The demurrer admits every allegation of fact contained in the complaint or fairly inferable from the facts alleged, and a pleading
The demurrer admits every allegation, whether the same be expressly or only impliedly or argumentatively averred, (Atkins v. Judson, 33 App. Div. 42.)
It may be questioned whether Kennedy is such a servant of the defendant as to make it liable for his negligent acts. (Howard v. Ludwig, 171 N. Y. 507.)
It is not necessary to consider to what extent the rule respondeat superior applies to an agricultural fair association, so as to make it liable for the negligence of its employees, as the complaint does not show whether the defendant is or is not a stock corporation. It cannot fairly be disputed that a corporation (whether a membership or stock corporation) is liable for its own acts, and one of its duties is to exercise reasonable care to employ competent and skillful agents, employees and contractors to perform its various services. The complaint, liberally construed for the pleader, certainly alleges the incompetence and the recklessness of Kennedy and the injury resulting therefrom, and that the defendant was negligent in performing the duty it owed to select competent employees, and negligently employed this reckless and careless man. The pleader is not alleging conclusions claimed to follow from other allegations, but seeks to add a new ground of liability, giving to his complaint a double aspect.
First. A liability for Kennedy’s alleged negligence under the rule respondeat superior.
Second. The violation of the master’s duty to use reasonable care in employing agents and servants, thus seeking to recover even though the rule respondeat superior is not applicable. A mere allegation that a death was caused by the defendant’s negligence is
I must, therefore, hold that the complaint foreshadows a cause of action charging defendant with negligence in employing an unskillful, incompetent and reckless man to perform the duties from which the injury occurred, and that the demurrer is an admission of a cause of action in that respect. The demurrer is, therefore, overruled, with the right to the defendant to answer upon payment of costs to be taxed. Interlocutory judgment may be entered accordingly.