119 N.Y.S. 460 | N.Y. App. Div. | 1909
The action is for negligence. The plaintiff attended a performance at a theater of which the defendant was the lessee, and was given a seat directly under a spotlight apparatus located at the rail of the top balcony. During the performance the operator of the spotlight, one Eckstein, dropped a slide and it struck the plaintiff
The learned trial justice charged the jury that Eckstein was not in the defendant’s employ, but that his carelessness was to be imputed to the defendant, and submitted to the jury the question whether his act in dropping the slide was negligent. The respondent insists that it was a question of fact whether Eckstein was in fact in the defendant’s employ when he dropped the slide, even assuming that the performing company was an independent contractor. But it is needless to consider that question, as it was not submitted to the jury.
There was a contract relation between the plaintiff and the defendant ; and, if Eckstein was the defendant’s servant, or if the defendant was estopped to deny that he was, the maxim respondeat superior applies, and the verdict may be sustained on the theory upon which it was submitted to the jury. Otherwise it cannot be. (For cases on the general principle, see Lewis v. Long Island R. R. Co., 162
(1) The respondent asserts that the defendant and the Fischer Company were engaged in a joint adventure. Stripped of details, the contract of the Fischer Company was to present a play in the defendant’s theater for a stipulated percentage of the gross receipts, and it seems to me that the contract is precisely as though the compensation had been fixed at a definite sum. It is unnecessary to cite authority upon the proposition that the essential requisite of a copartnership is an agreement to share profits and losses as such. Here the Fischer Company was to receive a percentage of the gross receipts, not as its share of profits as such for its contribution to a joint enterprise, but as compensation for presenting a play in the defendant’s theater. It is quite true, as the respondent contends, that the contract did not create the relation of landlord and tenant. The defendant retained possession and control of the theater, but the Fischer Company was an independent contractor, not a copartner, and its servants were not his servants. The case in principle is not distinguishable from Marsh v. Hand (120 N. Y. 315), which distinguishes Bostwick v. Champion (11 Wend. 571, sub nom. Champion v. Bostwick, 18 id. 175) and Stroher v. Elting (97 N. Y. 102), relied upon by the respondent, though the distinction may be rather fine. The Bostwiok and Stroher cases were decided upon the ground that the agreement disclosed was one to share profits as such and not by way of compensation either for services, or use of property. Flo doubt, parties to a contract may be liable to third persons as copartners even though they stipulate as between themselves that that relation shall not exist, where in fact there is to be a sharing of profits as such as a return for the contribution made by each to the joint enter prise. A familiar application of that principle was made in Leggett v. Hyde (58 N. Y. 272), one of the cases relied upon in the Stroher case. But unless there is an agreement to share profits as such, the parties are not liable as copartners, and cannot be made so by styling the transaction a joint adventure.
It follows, from what has been said, that this case falls in the class of Deyo v. Kingston Consolidated R. R. Co. (94 App. Div. 578) and Sebeck v. Plattdeutsche Volkfest Verein (64 N. J. L. 624). The defendant’s duty to the plaintiff was suggested in each of those cases. Ho doubt, the defendant would be liable to the plaintiff for his own negligence, for his own breach of duty to her ; but he cannot be held liable for the negligence of another except upon the application of the maxim respondeat superior j and, as we have seen, that may only be applied where the relation of master and servant exists or where the defendant is estopped to deny that it exists. The case of Thompson v. Lowell, etc., St. R. Co. (170 Mass. 577) was decided upon the defendant’s own negligence in failing to make the place safe to which it invited the plaintiff. Wyllie v. Palmar (137 N. Y. 248) was decided upon the application of the maxim respondeat superior, but upon the ground that the one whose negligence caused the accident was, in fact, the servant of the defendant.
The judgment and order should be reversed and a new trial granted, costs to abide the event.
Woodward, Jenks and Rich, JJ., concurred; Hirschberg, P. J., dissented.
Judgment and order reversed and new trial granted, costs to abide the event.