
    Elizabeth M. Fish, Appellant, v. Jonathan M. Coolidge, Respondent.
    
      Master and servant— injury caused by the negligence of a servant while driving the master's team without the authority and not on the business of the master—the master is not liable therefor.
    
    A master is not liable for personal injuries sustained by a third person through the negligence of his servant, unless the relation of master and servant existed in respect to the very transaction out of which the injury arose.
    In an action brought to recover damages for personal injuries sustained by the plaintiff in consequence of her being thrown down by a team owned by the defendant, while being driven on Sunday by the defendant’s servant in company with a stranger, it appeared that it was the duty of the servant in question to take care of the team and drive it when called upon for the use of the defendant or some member of his family. The defendant and the driver testified that on the occasion in question the latter was driving the team for his own pleasure, without the consent or knowledge of the defendant. The defendant also testified that the servant bad the right to exercise the team on week days, but not on Sunday, and it did not appear that the servant had ever before been, seen driving the team on that day.
    
      
      Held, that the evidence was not sufficient to authorize the jury to find that, at the time of the accident, the servant was engaged in the business of the defendant or acting in the course of his employment.
    Appeal by the plaintiff, Elizabeth M. Fish, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Warren on the 19th day of June, 1899, upon a nonsuit granted by the court after a trial at the Warren Trial Term.
    
      Potter & Kellogg, for the appellant.
    
      S. & L. M. Brown, for the respondent.
   Merwin, J.:

On Sunday afternoon, January 16, 1898,, the plaintiff, while cross-, ing. a street in the village of Glens Falls, was run, against and thrown down by a team, with sleigh or cutter, then being driven by one Thomas Fish. The defendant was the owner of the. team and vehicle. This action was brought to recover damages for personal injuries .sustained by the plaintiff upon that occasion. The claim of the plaintiff is that the defendant is responsible for the act of the driver, upon the theory that the driver was the servant of the defendant and then employed in his business. It was held by the trial court, in granting the motion for a nonsuit at the close of the evidence, that the driver, at the time was not engaged in ■ the business of the defendant and that, therefore, defendant was not liable.

The general rule is that the doctrine respondeat superior applies only when the relation of, master and servant is shown to exist between the wrongdoer'and the person sought to be charged for the result of some neglect or wrong at the time and in respect to the very transaction out of which the injury arose. (Wyllie v. Palmer, 137 N. Y. 248, 257, and cases cited.) The fact of general employment and pay is said not to be enough. (Higgins v. Western Un. Tel, Co., 156 N. Y. 75, 79.)

•. In 1 Shearman & Eedfield on Negligence (5th ed. § 147) the rule is laid down as follows : “ In determining whether a particular act is done in the course of the servant’s employment it is proper first to inquire whether the servant was at the time engaged in serving his master. If the act is done while the servant is at liberty from'his service and pursuing his own ends exclusively there can be no question of the master’s freedom from all responsibility, even though the •injury complained of could not have been committed without the ■facilities afforded to the servant by his relation to his master.”

This view is sustained by many cases. (Sheridan v. Charlick, 4 Daly, 338; Cavanagh v. Dinsmore, 12 Hun, 465 ; Bard v. Yohn. 26 Penn. St. 482; Joel, v. Morison, 6 C. & P. [25 E. C. L.] 501; Mitchell v. Crassweller, 13 C. B. [76 E. C. L.] 237.) In the Sheridan case it was held that, when a coachman, after having used his master’s horse and carriage in going upon an errand for his master, instead of taking it to the stable, used it in going upon an errand of his own, without his master’s knowledge or consent, the master was not liable for the servant’s negligence in running into the plaintiff’s horse.- In the Bon'd case it was held: “ Where a person employed by one as a servant is using the team of his master for his own purposes and benefit^ and in the absence of and without any directions ■from the master, uses the team so negligently as to occasion injury to a third party, the master is not liable for such injury, although he .assented to the servant using the team for his own .benefit.” In the ■Joel case it was held as follows “ If a servant, driving his master’s cart on his master’s business, make a detour from the direct road for some purpose of his own, his master will be answerable in damages for any injury occasioned by his careless driving while so-out of his road. But if a servant take his master’s cart without leave, at a time when it is not wanted for the purposes of business, and drive it .about solely for his own purposes, the master will not be answerable for any injury he may do.” The same was held in the Mitchell case. '

In the present case upon the part of the plaintiff it was shown by a witness by the name of Lee who lived in the village, that he had seen Thomas Fish drive the team before several times; had .seen the team go by his place of business frequently with the defendant riding in the ’ carriage with Fish. It was also shown that a day or two after the accident the father of the plaintiff called on" the defendant, told him he came to let him know what occurred about his team running over his daughter and that the defendant replied, I have just been informed by my driver at the foot of the stairs which is the first I knew of it.” It was shown that, at the time of the accident, there was riding with Fish another man, not the defendant, but a stranger, and that the team was racing. There was no-other evidence on the part of the plaintiff as to the relation between the defendant and the driver Fish, or as to - how Fish came to be-driving on that day. It did not appear that Fish had ever been seen driving defendant’s team upon Sunday.

The evidence upon the part of the plaintiff was not, we think,, sufficient to authorize the jury to find that .Fish, while racing upon Sunday in company with a stranger, was engaged in the business or service of the defendant or was driving in the course of an employment by the defendant. , .

The further question arises- whether the evidence given-upon the part of the defendant strengthens the plaintiff’s casei It was shown, -that Thomas Fish had been in the employ of the defendant for several years,, taking care of the defendant’s team, driving it when called upon to .do so for the use of the defendant or some member of his. family,-and.also did work.about the house and grounds of the defendant. The .defendant as well as the driver testified that upon the

• e, f),

occasion in question .the team was being driven without the consent or knowledge of the defendant and for no object or purpose of the defendant or in his .business. The driver.was without leave driving the team for his own pleasure. The defendant testifies-that the driver, in case the team needed exercise, had the. right to drive it for that purpose upon week days but not upon -Sunday. This does not. help the plaintiff as the jury would not have the right to find an authority to exercise the team upon Sunday contrary to the testimony of defendant and in the absence of any evidence to sustain such result. There was no proof that the team was a fast one or accustomed to be speeded.

The trial court did not, we think, err in holding upon the whole evidence that sufficient had not been shown to authorize the jury to find that the driver upon the particular occasion in question was engaged in the business of the defendant, or acting in the course of his employment. The judgment, therefore, must be affirmed.

All concurred, except Kellogg, J., not sitting.

Judgment affirmed, with costs.  