
    John E. Stone v. The Western Transportation Company.
    Construction of contract. Relation of master and servant. Principal and agent. Where plaintiff agreed with defendant to keep the horses of the latter through the winter, enumerating specifically what he was to furnish and supply to them, and, further, agreed to board a man for the said defendant at two dollars per week, in case the defendant may require a man to take care of said horses. Held, that it contemplated, that the defendant should furnish a man to take care of the horses, and, where such man was so furnished, as shown by the evidence in the case, he must be deemed the servant of the defendant, and not of the plaintiff. Held, further, that the plaintiff, and the man employed by defendant, could not be regarded as engaged in a common employment, and both as agents or servants of defendant, so as to exempt the latter, as principal, from liability to the plaintiff for the acts of his fellow servant. Hence, the rule in Wright v. New York Central R. R. Co, (25 N. Y. 562-564) not applicable to this case.
    Under chapter 422, Laws of 1864, section three, it is not necessary to prove> on the trial of an action by or against a corporation, created by or under the laws of this State, the existence of such corporation, unless the defendant shall have alleged, in his answer, that the same is not a corporation.
    Exception to charge. Appeal review. Where the charge of the court contains several propositions, as to some of which it is unobjectionable, an exception taken to each and every part of the charge presents no questions for review on a bill of exceptions. (Caldwell v. Murphy, 1 Kern. 416; Jones v. Osgood, 2 Seld. 223; Newell v. Dalys, 33 N. Y. 88.) Nonsuit. For grounds upon which nonsuit is asked, and grounds for denial, see opinion in full of Mason, J.
    
      John Hubbell, for the appellant.
    
      C. Carskaddan, for the respondent.
   Mason, J.

This action was brought to recover the value of a quantity of hay and oats, some wagons, harnesses, farming utensils, etc. This property, at the time it was destroyed by fire, was in a barn in the possession of the plaintiff, in which a number of horses belonging to the defendant were being wintered, under a written contract between the plaintiff and the defendant, in which the plaintiff agreed to keep twenty horses for the defendant through the winter, and to furnish and supply said horses with good and commodious stables and yard room, and to furnish an abundance of hay for food, and salt for use of the horses, and to furnish sufficient straw for bedding, and to keep constantly a sufficient supply of water conveniently situated for the use of said horses, and to furnish lamps, oil, and all tools which may be requisite or necessary in grooming or taking care of said horses, and to furnish a man and team to assist in leading the said horses to the tow-path of the Erie canal in the spring, or when said horses may be required by said company. The plaintiff also agreed to board a man for the said defendant at two dollars per week, in case the defendant may require a man to take care of said horses. I think it pretty clear, taking this contract as a whole, that it contemplated the defendant should furnish a man to take care of the horses.

It is true the plaintiff agreed to keep these horses for ninety cents per week for each horse. But here are the positive undertakings specifically provided, to furnish hay for food and straw for bedding, and such quantities of salt as may from time to time be required for the use of said horses, and lamps, oil and tools which may be requisite or necessary in grooming or taking care of said horses, and to keep constantly a good and sufficient supply of water conveniently situated for the use of said horses.

There is no agreement to furnish a man to feed and groom the horses, but there is an agreement to board the defendant’s man for two dollars per week, if the defendant should require it. And there is also an agreement to furnish a man and team to assist in sending the horses to the canal in the spring. The parties contemplated that the defendant would furnish a man to feed and take care of the horses. Be this as it may, however, the contract gave the defendants this right, to put the horses in charge of their own man to feed and groom, and the plaintiff agreed to board him for two dollars per week. This man must be deemed the servant of the defendants and not the plaintiff.

The defendants admitted the existence of their corporation by merely denying the allegations of the complaint in their answer.. It was decided in the case of The Bank of Genesee v. The Patchin Bank, that the provisions of the Revised Statutes, dispensing with proof in such case, was not repealed by the Code. (3 Kern. 309). If there were any doubt on this subject it is removed by chapter 422 of the Laws of 1864, which provides, that, in suits brought by or against a corporation, created by or under the laws of this State, it shall not be necessary to prove, on the trial, of the cause, the existence of such corporation, unless the defendant shall have alleged, in the answer in the action, that the plaintiffs (or defendants, as the case may be) are not a corporation. (Laws of 1864, p. 107, § 3). The exceptions, therefore, taken by the defendants, to the evidence given by the plaintiff, to prove the defendants a corporation, are wholly unavailing, if well taken. The charge of the judge is wholly unexceptionable. The defendants have no such exceptions taken as can subject the charge to review here. The charge embraces all the points and propositions in the case, and at the close the case states that the defendants except to each proposition of the charge, excepting that in reference to the plaintiff’s contributing to the injury. Where the charge of the court contains several propositions, and as to some of them it is unobjectionable, an exception taken to each and every part of the charge presents no questions for review on a bill of exceptions. (Caldwell v. Murphy, 1 Kern. 416; Jones v. Osgood, 2 Seld. 223; Newell v. Dalys, 33 N. Y. 83.)

The only remaining question in the case arises on the defendants’ motion for a nonsuit, and which was properly overruled by the court. The defendant stated seven grounds of motion for a nonsuit. The first is, that this incorporation of the company is not proved. The answer to this has already been given, the fact stands admitted by the defendants’ answer, and besides it was fully proved. The second is, that there is no evidence of authority from the company to make the contract. This objection is a good one, if true. The contract was made in behalf of the defendants by Jacob Coom, who was at the time in the employ of the defendants, and who swears that he executed the contract by direction of J. B. Chipps, and that Kelsey, who "was the defendants’ general superintendent, wrote him, that he had engaged Chipps as his assistant, and Kelsey swears that he had hired Chipps as his assistant, and when to this is added the fact that the defendants sent their horses to the plaintiff to keep, under the contract, and that he had actually kept them three or four weeks when .the fire occurred, there certainly was evidence for the jury sufficient to submit the case to them. The third ground is, that there was no evidence that Brophy was an agent or in the employ of the defendants. Brophy swears he was in the employ of the defendants, at Syracuse, taking care of horses in stables there, and had been three or four months, and that he went with these horses to the plaintiffs, to take care of them, by the direction, of Baker, who kept a station at Boehester. James Clarke swears that he resides in Syracuse, and was in the employ of the defendants, and was station agent at Syracuse, and that Brophy was in the employ of the company, and that Baker came there in the night to get the horses off the canal, and said that Brophy was going to. Oneida with the horses, and he says that he had told Kelsey that Brophy would be a good man to winter the horses. Bow, Kelsey swears that he had sent Baker down to lead the horses to winter quarters, and that it would be his business to get a man such as he pointed out to him to take care of them, and he says that he has not any doubt but that he recommended this Brophy to Baker, and he swears that Brophy was recommended to him by Clarke, and he states further that he supposed Baker put him into this stable. This, certainly, was quite sufficient to submit this question of Brophy’s employment to the jury. The fourth ground is, that, upon the evidence in the case, the defendants were not liable. This was clearly a question for the jury. If this hay and barn was set on fire by the negligence of the defendants’ servant, of which there can be no doubt upon the evidence, I take it to be very clear that the defendants are liable while the rule remains that the master is responsible for the negligence of his servant. The position assumed by the defendants’ counsel in his argument here, that Brophy is not to be deemed the servant of the defendants, cannot be sustained, and besides, the jury, have found that fact against the. defendants. There is nothing in the contract which places Brophy under the dominion and control of the plaintiff.. Qn the contrary, the. contract is-cautiously drawn to avoid any such thing.- • .The* plaintiff agrees to furnish hay for. food, straw for bedding, a convenient supply of water at all times, to- furnish lamps, oil,. and all tools which may be necessary in grooming and taking care of the horses, etc. It is apparent, from.the contract, that the defendants preferred, to place the'.charge and control of thé horses, and their feed and water, grooming, etc., in the hands of their own man, and they did so, and must be held responsible for his neghgence. The fifth ground is, that there is no evidence of negligence on the part of- the defendant. The defendants are liable for the negligence of their servants, and the evidence is very clear that Brophy, the defendants’ servant, was negligent. He went into the bam with a glass lantern,-filled with kerosene oil, and took it upon the hay-loft, and carelessly placed, it • upon a beam, to which the hay pearly or quite approached, and probably, as he confesses, knocked it off with the pitch-fork, and set the hay and bam on fire, and the negligence was clearly proved. The sixth ground of ejection is, that- the negligence on the part of the plaintiff, in furnishing a kerosene' lamp, contributed to this injury. The plaintiff directed Brophy to hang the lamp upon a peg on the lower .floor, but instead of that, he took it upon the hayloft. • The contract required the plaintiff to furnish such a lantern, and also to furnish oil. This may be construed to mean kerosene oil, as this article is now more in common use in such lanterns than any other oil. At any rate it can hardly be charged as an act of negligence to furnish an article now in so common use, as most of the lanterns in use are constructed for using such oil. Had Brophy hung this lantern on the peg, provided for that purpose by the plaintiff, this fire never would have occurred, and but for his gross negligence in carrying it upon the hay-loft, this action never would have been brought. This answers the seventh and last point raised on the defendants’ motion for a nonsuit, which is, that the evidence shows, that this fire was the result of an accident. The fire was the result of Brophy’s gross negligence.

The cause was properly submitted to the jury, and the judgment should be affirmed.

Miller, J.

By the terms of the contract between the plaintiff and the defendant, it was provided that, in case the defendant required a man to take care of the horses,” the plaintiff was to board him at the price named in the contract. The plaintiff was to keep the horses, furnish stable room, hay, and other articles enumerated, and the defendant, if the company deemed proper, had the right to furnish a man to take care of them. The duties of the person thus employed would be to perform all kinds of work that was required for the proper care of the horses, and this would necessarily include providing them food and all other things which were essential to their comfort and care, which the plaintiff was bound to furnish under the contract. This, I think, is the plain meaning of the contract, and it is not susceptible of any other reasonable construction. If the man furnished was not to do this kind of work, then with equal propriety he might be exonerated from performing other services which were required for the proper care of the horses.

It is insisted by the defendant that there was no proof that Brophy had been employed by the defendant at all, much less that he was employed by the defendant to do the work he was doing at the time the accident happened. I have already discussed the question, whether, by the terms of the contract, Brophy was employed within the sphere of his duty, and, as I have come to the conclusion that he was, it is unnecessary to enlarge on the subject. As to the question whether he was employed by the defendant, I think it was a question of fact for the jury to determine. He certainly did the work. He was not employed or paid by the plaintiff, and he went there to take care of the horses by the request of the defendants. The general superintendent of the company says that he sent a man, with directions, giving the names of persons to take care of the horses, that Brophy was recommended as a fit and proper person, and he thinks he gave the man thus sent his name. The agent thus sent employed Brophy, and he was engaged by his direction and authority. Here was sufficient evidence, prima facie, to show that Brophy was employed, and, at least, to submit the matter to the jury.

It is further insisted, that, even if Brophy, under the proof, is to be regarded as the servant of the defendant, the latter would only be liable for his negligence when Brophy was acting within the scope of his employment, which was not the case here. As I have already indicated, the contract, which provided that the defendant might furnish a man to take care of the horses, included and contemplated, according to its real intention, that the person thus selected should perform any and all services required for the protection, safety and comfort of the horses. It was, therefore, within the range, and a part of his duties to attend to providing them with hay, and clearly within the scope of his employment. It is no answer to say that the plaintiff was bound to furnish and supply the hay and place it within their reach. Concede that he was thus obligated, and that, his contract embraced this, it does not, for that reason, exclude the person employed by the defendant from the performance of the same duty, if that was required.

As the contract between the plaintiff and the defendant in this case provided for the employment by the defendant of a man to take care of the horses, it was intended that such person should act in connection with and an assistant of the plaintiff in performing the contract. In such a contingency, it is insisted that the plaintiff and Brophy were engaged in a common employment, in taking care of the animals in question, as the servants and agents of the defendant, and that, under such circumstances, the principal is not liable to one servant or agent for the act and conduct of another servant. This distinct objection does not appear to have been

taken upon the trial, but as the defendant moved for a non-suit upon the ground, among others, that upon the evidence in the case he was not liable, and as the alleged difficulty is one which, if it exists, could not be obviated and strikes at the very foundation of the plaintiff’s right to recover, I am inclined to think that the point is now before us. The rule is well settled that the master is not responsible for injuries resulting from the negligence, carelessness or misconduct of a fellow servant engaged in the same general business. (Wright v. N. Y. Central R. R. Co., 25 N. Y. 562-564, and authorities cited.) But this rule has no application to a case like the present. The relation of master and servant did not exist between the plaintiff and the defendant. The plaintiff was employed, under a special contract, to provide for and take care of certain horses of the defendant, but he was not in any sense a servant of the defendant. Suppose the plaintiff had contracted to furnish materials merely, and the agent of the defendant had been engaged in executing them, could it be said that both parties were servants of the defendant or engaged in the same general business % I think not. It is only when the business is general in its character, such as railroad employees are engaged in while prosecuting the work of the company, that such a rule can be held to apply.

There being no error on the trial, the judgment of the General Term must be affirmed with costs.

Judgment affirmed.  