132 A.D. 35 | N.Y. App. Div. | 1909
Lead Opinion
The exception to the charge that the admission of the superintlendent was an admission of the defendant presents reversible error
But we should not send this case back \f or a new trial without deciding the main question presented by the Accord before us, lest a wrong inference be drawn. The point is raised, but none too plainly, by the motion to dismiss. \
In the absence of explanation, it would seem plarin, as the court charged the jury, that the mother was negligent in alloywing a three-year-old child to wander unattended six blocks from ho\pe; but the court submitted the case to the jury on the theory, not dxxcepted to, that the plaintiff was a passer-by in the street and that, aik he would not have been chargeable with negligence if he had been adult, the mother’s negligence was not to be imputed to him. ¡But he was not merely a passer-by in the street; he was, in fact, ¿it the place of the accident because .of the errand of the older lad,1, and was waiting for that errand to be done. Had he arrived at yUars of discretion, he would have known that Murtha was about to curop the barrel from the window and would have been negligent\i¿ getting in the way of it. Hence it would seem to be plain tln&t, upon the theory that the plaintiff was unattended, the mothen’s negligence was to be imputed to him. However, I do not credlit the statement of the older boy that he did not know that the plaiihtiff was with him, until the latter was hurt. It seems to me tin the more rational view to take of the evidence is that the plaiuti was intrusted to the custody of the older boy, in which case th latter’s negligence is to be imputed to him. (Hennessey v. Brooklyn City R. R. Co., 6 App. Div. 206; Mangam v. Brooklyn R. R. Co., 38 N. Y. 455; Lannen v. Albany Gas Light Co., 44 id. 459) It is difficult to escape the conclusion that the older boy, knowing £ it EE D
I cannot find that the point has been decided. The cases dealing with the liability of charitable corporations for the acts of servants are analogous, but the reasons commonly given for non-liability to the recipients of the charity in that class of cases are not applicable, although in reason a charitable corporation and an individual doing charitable work ought to be in the same class respecting the application of the rule respondeat superior j and the reasons given by the courts for the decision in those cases do not preclude a reason applicable to both. (See Kellogg v. Church Charity Foundation, 128 App. Div. 214.)
The cases of passengers riding gratuitously may be thought analogous, but they belong to a class by themselves. Certain duties of the carrier spring from the relation of carrier and passenger, once that relation is found to exist, and the cases resting upon the negligent discharge of a duty cast upon or assumed by a party do not involve the rule respondeat superior, although some of the opinions
This case is not altogether unlike the case where a servant is temporarily loaned, it matters not for how brief a time. (See Wood v. Cobb, 13 Allen, 58; Hasty v. Sears, 157 Mass. 123.) The master in this case allowed the servant temporarily to serve others, much as the engineer in Olive v. Whitney Marble Co. (103 N. Y. 292) volunteered to assist those testing the boiler; if the master had actually assented to the rendering of that service, the case would have been the same; but perhaps this case has to be distinguished by the fact that the master did not part with the control of the servant, at least upon a view of the evidence which it was possible for the jury to take; and we may assume for the purposes of this case that the master would have been liable to a passer-by in the street, injured by Murtha’s negligent act.
However, the defendant has been held liable for Murtha’s wrong, not for his own breach of duty, and the question is whether the rule respondeat superior is to be applied as between the recipient of a charity and the donor. The maxim “ gui facit per alium facit per se,” frequently quoted in connection with that rule, does not solve the difficulty, because, strictly interpreted, it only applies to an act in fact, and not impliedly authorized, whereas the rule is applied to acts done without authority and even in disobedience of positive
The judgment should be reversed.
Woodward, Gaynor and Rich, JJ., concurred; -Jenks, J., concurred in separate memorandum.
Concurrence Opinion
My concurrence is confined to the first ground stated in the opinion of Miller, J. I think that liability of the master for the negligence of his servant may be found notwithstanding that negligence is incident to a voluntary, gratuitous or charitable undertaking of the master.
Judgment and order reversed and new trial granted, costs to abide the event.