O'Loughlin v. Mackey

182 A.D. 637 | N.Y. App. Div. | 1918

Putnam, J.:

Mackey was never employed by defendant Kelly to drive a motor car. He was not a licensed chauffeur. He had, however, previously driven a Ford car, but it did not appear how often he had done so. Appellant did not own this car. She did not furnish it to Mackey. She did not authorize him to run it, or even know it was being used by Mackey.

Where a servant is engaged in pursuing or carrying through something within the scope of his employment, and while so engaged adopts means reasonably directed to the end, which result in injury to another, the master is answerable for the consequences. But the means here adopted were not reasonable. The use of an automobile, with the danger of its operation by one who was not a licensed chauffeur, was not the adoption of such means to do his work as would be binding upon his master. In Limpus v. London General Omnibus Co. (1 H. & C. 526) it was said by Blackburn, J.: “ It is not universally true that every act done for the interest of the master is done in the course of the employment. A footman might think it for the interest of his master to drive the coach, but no one could say that it was within the scope of the footman’s employment, and that the master would be liable for damage resulting from the wilful act of the footman in taking charge of the horses.”

While sometimes an automobile had been furnished Mackey as a means of transportation, it stands uncontradicted that a chauffeur was also always provided by his employer, and Mackey himself admitted that in his duties he never before had driven a machine and was not authorized by his principal so to- do. So far as the record discloses, it was not necessary for him to drive this car, and, in view of his not being a licensed chauffeur, it was an unnatural thing for him to do. His act was without the knowledge or request of appellant Kelly, for which she is not responsible. (Wilson v. Pennsylvania R. R. Co., 63 N. J. L. 385.) There a man who had habitually carried mail in a small push-cart, attempted, without authority, to drive an Adams Express wagon, injuring plaintiff. It was held that plaintiff should have been nonsuited.

In Goodman v. Kennell (1 Moore & P. 241 [1828]) one occasionally employed by defendant to do errands, when sent with a book, took a horse, without the express consent or knowledge of. defendant, and while thus riding ran down plaintiff. Both Park and Best, JJ., admitted that in such case the master would not be liable. Best, J., said: “ It has been truly said, that a servant’s riding the horse of another, without the assent or authority of his master, cannot render the latter answerable for his acts.” (See Labatt [2d ed.], § 2282; Driscoll v. Scanlon, 165 Mass. 348.)

Plaintiff failed to support the burden imposed on him, of showing that Mackey’s act was within the scope of any implied authority.- To hold appellant hable from the facts here adduced, would extend the rule-so as to make a master responsible for every act of the servant while in the master’s employ, with the result that the master would become an insurer.

I recpmmend, therefore, to reverse. As the facts as to the appellant are not in conflict, and not subject to opposing inferences, as to her I think the complaint should be dismissed, with costs.

! Present — Jenks, P. J., Thomas, Mills and Rich, JJ.

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I Judgment and order reversed and complaint unanimously dismissed as to the appellant Ann Kelly, with costs.