
    Joseph Wallace, an Infant, by John J. Wallace, His Guardian ad Litem, Respondent, v. John A. Casey Company, Appellant.
    Second Department,
    April 23, 1909.
    Negligence — injury to applicant for charity by act of donor’s servant — erroneous charge as to admissions — infants — when chargeable with negligence of parents and custodians.
    In an action by an infant who was struck by a barrel thrown from the window of the defendant’s factory by an employee who was allowed to give barrels away to be used as fire wood by poor persons applying therefor, it is reversible error to charge that an admission by the defendant’s superintendent that workmen were allowed to throw barrels to persons calling for them is binding . upon the defendant when no such admission was made. The fact that the superintendent testified that employees were allowed to give away barrels to poor persons is not an admission that they were allowed to throw them from the window.
    
      It seems, moreover, that had such admission been made it would not have been binding upon the defendant.
    á. mother'is negligent in allowing a three-year-old child to wander unattended six blocks from homo in the absence of explanation, and her negligence may be imputed to the child.
    
      Where an infant three years old was injured as aforesaid while accompanying a boy twelve years of age who was sent for the barrel, he cannot be deemed a mere passer-by on the street so as to put him beyond a charge of contributory negligence.
    
      It seems, that where in such action it appears that the plaintiff was intrusted to the custody of the elder boy who was negligent in allowing the infant to get in the way when knowing that the barrel was to -be dropped from above, his negligence is chargeable to the plaintiff.
    Where the defendant's servants were forbidden to take pay for barrels given away to poor persons for fire wood, so that the purpose of the defendant was purely charitable, he is not liable for injuries received by an infant who was allowed to accompany an older boy sent for the barrel, although the servant who dropped the barrel from an upper window be deemed to have been acting for the master. This, because under the circumstances, the recipient of the charity assumes the risk of negligence of the donor’s servant.
    Theory of the rule respondeat superior discussed per Millee, J.
    Jehks, J., dissented in part, with memorandum.
    Appeal by the defendant, John A. Casey Company, from a judgment of the Supreme Court in favor.of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of April, 1908, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 29th day of April, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    The action is for negligence. It appeared that the plaintiff accompanied his uncle, a lad twelve years of age, who was sent by the plaintiff’s mother from their home to the defendant’s factory, a distance of six blocks, for firewood ; that the uncle gave the defendant’s employee, Murtha, a nickel to get a barrel for him from the loft of a shed abutting upon the street, and that Murtha threw or dropped from the window of the loft an empty barrel which fell against the plaintiff, then but three years of age, inflicting a serious izzjury. The uncle testified that he did not know that the plaintiff had followed him or was present until the accident happened. The plaintiff’s mother was not called as a witness, and he offez-ed no evidence to show what care was exercised by her as his custodian, or how he came to be allowed to accompany or follow his uncle. It appeared that it was customary for the poor people in the neighboi1hood of the defendant’s factory to gather firewood, empty rosin barrels, from the factory yard; and that sometimes the workmen helped them to get barrels from the loft of the shech,, /There was nothing to show that the defendant adopted that rj/éthod to get rid of the barrels; the evidence indicates that they./were of value; the workmen were forbidden to take pay for thiem; the money paid appears to have been given the servant foj/his own; and the case went to the jury on the theory that, so ^fav as the defendant was concerned, the act was purely charitable/ The defendant’s evidence tended to show that the accident did jiot happen on its premises, or that, if it did, it was during the juoon hour, and that Murtha was induced by the payment of &v& cents to return to the loft, after he had quit work, and to tlp/ow out the barrel. The court submitted three questions to th^/ jury, viz.: (1) Did the accident happen as claimed by the plaintiff; (2) was Murtha’s act in throwing out the barrel done within/(lie line of his employment and the spope of his authority; (3) did the mother’s negligence in allowing him to go unattended copitribute to the accident. In respect to the latter proposition, t’iie court charged the jury that the mother was negligent, but th¡bt such negligence would not defeat a recovery in case the acciden/t would have happened just the same had the plaintiff been atter/ded by a suitable person. A motion to dismiss was made at the cltifce of the evidence on the grounds, inter alia, that Murtha’s act wati not done in the line or scope of his duty and that it was negligent in law for the plaintiff to be where he was, unattended. At |che close of the charge, the plaintiff’s counsel requested the change that “the admission of the superintendent that workmen we/’e allowed to throw barrels out to persons calling for them is an ad/mission of the defendant,” to which the court replied, “ He in that re/spect stood for the defendant. I charge that.” The superintendent hád made no such admission.
    
      !John O. McGuire [F. J. Gonnolly with him on the brief], for tine appellant.
    4iWilliam W. Wingate [Andrew F. Van Thun, Jr., with him on le brief], for the respondent.
   Miller, J.:

The exception to the charge that the admission of the superintlendent was an admission of the defendant presents reversible error because, the superintendent had not made it, and, second, if he had it was not tibe admission of the defendant — a proposition which I need not discussh The error was harmful. The superintendent had testified that theXmen were allowed to give away the barrels to unen iffiere poor people, a very dimprent thing from being allowed to throw them oiit of the window ii^to the street. Upon the most favorable view of this case to the pladntiff it was a question of fact whether Murtha’s wrong was committed in the course of his employment as such. The jury must have unctWi^stood from the charge, excepted to, that he was in fact authorized <he master to do the negligent thing complained of. X \ x

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 that the barrel was to be dropped from the loft, was negligent for allowing the plaintiff to get in the way of it; and there is certainly more reason to. impute the negligence of the custodian immediately contributing to the accident than the more remote negligence of the parent in allowing the child to go unattended. It is true that that view was not submitted to the jury and is not presented to us by an exception. I refer to it to show that the negligence, either of the mother or of the immediate custodian, is to be imputed to the plaintiff, and that he was identified with the errand resulting in his injury and with those receiving the charity. He was not an outsider — a mere passer-by in the street. While the doctrine of identification, as broadly applied to the question of imputed negligence in Thorogood v. Bryan (8 Com. B. 115) has been repudiated (Little v. Hackett, 116 U. S. 366), it seems to me that, in a restricted sense, it does bear on the question of the defendant’s responsibility to the plaintiff, as in Waite v. North Eastern R. Co. (96 Eng. Com. Law [1 El., Bl. & El.], 719, 728). We come, then, to the interesting and novel question whether the defendant is answerable to the plaintiff for the wrongs of the former’s servant committed in the act of rendering gratuitous service to those with whom, and in a transaction with which, the plaintiff was identified, assuming that the servant was authorized to render the service.

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 appear to assume that they do. Once the duty is shown, it matters not by what agency the party attempts to discharge it. Ever since the leading case of Coggs v. Bernard (2 Ld. Raym. 909) one undertaking gratuitously to discharge a duty has been held accountable for the manner of its discharge, though the fact that the service is gratuitous may be considered on the question of the degree of care required. (Shiells v. Blackburne, 1 H. Black. 158.) It should be said in passing that the dictum in Lannen v. Albany Gas Light Co. (supra, 465) is supported by references which deal with the principle of Coggs v. Bernard, and not with the' rule respondeat superior. One of the leading cases in this country on the liability of a common carrier to a gratuitous passenger was decided on the principle of Coggs v. Bernard (Philadelphia & Reading R. R. Co. v. Derby, 14 How. [U. S.] 468); and it would seem that what was said in the latter case respecting the rule respondeat superior was unnecessary to the decision because, if the principle of Coggs v. Bernard applied, it was unnecessary to invoke that rule.

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 orders. Under the Roman law, from which the rule was borrowed, the master was personally liable only for the wrongs of his slave, committed by his orders or which he could have prevented. (1 Beven Neg. [2d ed.] 687, and references.) Wrongs are rarely authorized in fact; but, under the rule as now applied, the master is not permitted to deny that the act was done by his order, if done within the course of the employment in the furtherance of the master’s business. We must, then, ascertain the reason for the extension of the rule; but we find upon examining the cases that judges have usually contented themselves with a statement of what they deemed to be the rule, or have stated the rule as the reason for it. In one of the earliest reported English cases on the subject (Tuberville v. Stampe, 1 Ld. Raym. 264), Lord Holt, who delivered the judgmént in Coggs v. Bernard, assigned as a reason for holding the master liable on the ground of implied authority that the servant’s act was for his master’s benefit.” In Barwick v. English Joint Stock Bank (L. R. [2 Ex.] 259), said by Sir Frederick Pollock to be a classical authority (Pollock Torts [6th ed.], 75), Willes, J., thus states the rule: “ The general rule is, that the master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master’s benefit, though no express command or privity of the master be proved.” That statement of the rule has frequently been quoted and referred to with approval. (See British Mutual Banking Co. v. Charnwood Forest R. Co., L. R. [18 Q. B. Div.], 715; Limpus v. London General Omnibus Co., 1 Hurlst. & C. [Ex.] 526,540.) The Court of Appeals have thus stated the rule: “ The maxim respondeat superior applies, provided only that .the agent was acting at the time for the principal, and within the scope of the business intrusted to him.” (Higgins v. Watervliet Turnpike Co., 46 N. Y. 23,27; Rounds v. D., L. & W. R. R. Co., 64 id. 129,133.) “ The rule * * * is that for the acts of the servant, within the general scope of his employment, while engaged in his master’s business, and done with a view to the furtherance of that business and the master’s interest, the master will be responsible, whether the act be done negligently, wantonly, or even willfully.” (Mott v. Consumers’ Ice Co., 73 N. Y. 543.) In the case of alleged willful or reckless acts, the test is whether the act was done within the general scope of the employment and with a view to the furtherance of the master’s business, or whether the servant did it to effect some other purpose without having the master’s interest or service in mind. (Magar v. Hammond, 183 N. Y. 387, 390.) Though in a general sense Murtha’s act was done while he was engaged in the master’s business, strictly it was not done for the master’s benefit, in the furtherance of the master’s business or in the master’s interest ; but it was done wholly in the interest and for the benefit of those with whom the plaintiff was identified. Thus the foregoing rules, literally construed, would not fit this case. Murtha was not employed to give away wood ; but, in the course of the work for which he was employed, he was authorized to do that. However in doing it, I think he was acting for the master, provided the latter, desiring to give the wood to the poor people in the neighborhood, authorized Murtha to act for him; and I think the courts have used the words “ benefit ” and interest ” in a broader sense than that of personal advantage or gain. For the purposes, of this case I think the defendant may be deemed to have been engaged in the charitable work or business of giving away wood; and that, upon one view of the evidence, Murtha’s act may be regarded as done within the course of his employment in the furtherance of the master’s business and to serve the latter’s purposes. In a legal sense, an act may be deemed to be for the master’s benefit when it serves his purposes. Thus the case is brought within the rule, unless the reason for the rule excludes it. No precise statement of the reasons for the rule appears to have been attempted, although many expressions may be found, indicating the trend of thought. Expressions may be found to the effect that the rule is founded on considerations of .public policy, that business' has to be conducted by means of agents, that corporations can act only through agents, and that, if the master were permitted to shield himself behind secret instructions, he could always evade liability. I think that the rule has been adopted of necessity as the only workable rule to make men answerable for the conduct of their own affairs, much as principals are held liable on the unauthorized contracts of their agents, made within the scope of the latter’s authority. But there are no considerations of policy, justice or necessity for applying it to a case like this; and the fact that it has not been extended to such a case, if I am right in that assumption, is a cogent reason for thinking that it does not apply. When we come to separate the cases depending strictly on the rule respondeat superior from those resting on the breach of some duty, we see that the former class' embraces cases between strangers, the latter those between persons sustaining relations from which correlative rights and duties spring, persons in privity, as some of the cases say. That view was adopted by Shaw, Ch. J., as the reason for holding that the rule respondeat superior did not apply between master and servant. (Farwell, v. Boston & Worcester R. R. Corporation, 4 Metc. 49.) His able opinion in that case has often been quoted; it was incorporated by the reporter in one of the English reports (3 Hacq. 316), and it received the unreserved indorsement of the Court of Appeals in the leading case in this State on that subject. (Coon v. Syracuse & Utica R. R. Co., 5 N. Y. 492.) I think that later decisions show a tendency to lose sight of the sound reason on which Chief J ustice Shaw placed the fellow-servant doctrine, and to put it on the vague ground of public policy, though Sapallo, J., in the leading case of Crispin v. Babbitt (81 N. Y. 516, 521) plainly perceived and approved of the former reason. In Keegan v. Western R. R. Corporation (8 N. Y. 175), Ruggles, Ch. J., distinguished between an injury to a passenger on a railroad and to a servant of the railroad, and said that in the former case the negligence of the servant was imputed to the master on the ground of public policy, overlooking the fact that the liability of the carrier did not depend on imputed.negligence but on breach of duty. In the dissenting opinion of Earl, J., in Crispin v. Babbitt (supra, 528), it is stated that As the master’s responsibility has been extended by the doctrine of respondeat superior from considerations of public policy, so that doctrine has been limited by similar considerations in respect to the master’s responsibility to his servants,” and Church, Ch. J., in Flike v. Boston & Albany R. R. Co. (53 N. Y. 549, 552), quoting from the opinion of Pratt, J., in Coon v. Syracuse & Utica R. R. Co. (6 Barb. 231, 235), says that “ the rule respondeat superior does not itself spring directly from principles of natural justice and equity, but has been established upon principles of expediency and public policy for the protection of the community; and that, in view of the unjust consequences which may ensue from its application for injuries by co-servants, the same principles of public policy demand its limitation.” Whether the decision in this case is put on the vague and unsatisfactory reason of public policy or upon the firm ground on which Chief Justice Shaw based the fellow-servant doctrine, the same result will be reached. The plaintiff, those with whom he was identified, and- the defendant, were not strangers. They stood in the relation of donor and donee. One for whom another’s servant is rendering a gratuitous service cannot reasonably expect the master to be liable for the servant’s negligence. ' There can certainly be no principle of natural justice which would require one engaged in charitable work to be liable to the recipients of his charity for the wrongs of others. If he use reasonable care in the selection of the means and is guilty of no wrong himself, he ought not to be answerable to those who accept the charity for the -wrongs of servants whom he has to employ to make it effective. There are certainly as strong, if not stronger, reasons for holding the recipient of a charity to have assumed the risk of the negligence of the donor’s servant as there are for holding a servant to have assumed the risk of á fellow servant’s negligence. It is shocking to one’s sense of right and wrong to hold a defendant liable upon the facts disclosed in this case. The reasons for .the extension of the rule respondeat superior, so. far as they can be gleaned from the books, do not require it, and,' in the absence of controlling authority, we should not extend the rule to such a case.

The judgment should be reversed.

Woodward, Gaynor and Rich, JJ., concurred; -Jenks, J., concurred in separate memorandum.

Jenks, J. (concurring):

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.  