
    George Cunningham, Respondent, v. Burton S. Castle, Appellant.
    First Department,
    July 8, 1908.
    Negligence motor vehicles — liability of owner for negligence of chauffeur — use of car by servant for private purposes — credibility of witnesses.
    The owner of a motor car is not, as matter of law, liable for injuries caused by the negligence of his chauffeur when not engaged in the master’s business, but using the car with the master’s knowledge and consent on a private pleasure trip of his own.
    A motor car is not per se of so dangerous a character as to render á master liable for the negligence of a competent chauffeur to whom the master loaned the car for private use.
    Where in an action to recover against the owner of a motor car for injuries to a pedestrian occasioned while a chauffeur was running. the car the defendant and his chauffeur called by the plaintiff1 have, both testified that the chauffeur was not using the machine in his master’s business, the testimony is that of interested witnesses and their credibility is a question for the jury.
    Houghton and McLaughlin, JJ., dissented, with opinion.
    Appeal by the defendant, Burton S. Castle, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 19th day of December, 1907, upon the verdict of á jury for. $10,000, and- also from an order entered in said clerk’s office on the 3d day of January, 1908, denying the defendant’s motion.for a new trial made upon the minutes. .
    
      Theron G. Strong, for the appellant.
    
      Theodore Hansen of counsel [Hansen, Zinsser & Power, attorneys], for the respondent.
   Clarke, J..:

This is an appeal from a judgment for the plaintiff .entered upon . the verdict of a jury and from an order denying a new trial in an action to recover damages for injuries under a complaint which alleges as follows: “ That at the times hereinafter mentioned, the defendant owned and controlled an automobile,. and operated or caused to be operated the same on the public highways in the city .of Hew York; * * . * that on or about the 19th day of September, 1904, and while the plaintiff was lawfully on the highway, he was knocked down and run over by the defendant’s automobile, which was operated by the defendant, his agent or servant.” There was sufficient evidence of want of contributory negligence on the part of plaintiff and of negligence on the part of the chauffeur to sustain the judgment.

The question presented here arises out of the following evidence: The plaintiff called the defendant as a witness, who testified: “ I owned a Mercedes automobile and employed one Harry Boes as a chauffeur at that time. - * * I had been out in the automobile the day before this occurred. After my return the automobile was left in the possession of Harry Boes, my chauffeur. At that time he asked me if I would loan him the machine to go uptown on some business for himself. I told him yes, but to hurry back, only be gone a short while,.come right back. * * * That was all that took place between the chauffeur and myself as to loaning him the machine. * * * It was about 11 o’clock at night that I returned to my apartment and loaned Harry Boes the machine.”

Boes testified : I was Mr. Castle’s chauffeur and had been in his employment at the time of this accident, to the best of my knowledge, about two and a half or three months. On the night before this injury happened, which was Sunday night, previous to the time when ! went out when the accident happened, I had been out with Mr. Castle. I left him at the Pierrepont Apartment in 32nd street, right near Broadway. * * * On leaving him I spoke to him about borrowing the machine or as to letting me have the machine for purposes of my own and my own pleasure. I said, ‘ Mr. Castle, may I use your car for an hour or two ? I just want to take a run up to Harlem and be back in an hour or an hour and a half or two hours.’ Then he says, c all right, .be careful; if anything happens be sure to notify me right away.’ That was his consent. I took it out for purposes of my own entirely, for my own pleasure, and not in any business of Mr. Castle’s. ■ It was about' ten minutes to eleven that I asked Mr. Castle for permission to take it out.”. He then went to Shanley’s, wlión he was joined by two women and a friend. He took them uptown and was coming down Eighth avenue from One Hundred and Fiftieth street when he struck the plaintiff at Eighty-first street and Central Park West about half-past one. in -the morning.

The court charged: • “ But I charge you that the fact that the machine was at the time in possession of and driven by the chauffeur with the owner’s permission places upon the owner the same degree of liability for the chauffeur’s negligence, if any, as would have been imposed upon him if the chauffeur were then engaged in the personal business of the defendant,” to which an- exception was duly taken. The defendant requested the court to charge: “ The mere fact that the person in charge of the automobile at the time of the accident was an employee' of the defendant does not render the, defendant liable for whatever he. did. Unless he was engaged in the defendant’s business at the , time the accident occurred, the •defendant is not liable for any injuries to the plaintiff resulting therefrom.” And also: “ If Boes, the chauffeur, had borrowed the automobile and at the time of the collision with the plaintiff was using it for his own pleasure and not in' the business of the defendant, the plaintiff is not entitled to a verdict.” And also : If the jury believe the testimony of Mr. Castle, the defendant, as to the circumstances and conditions under which the chauffeur was permitted to use the automobile oh the night of September 18th, 1904, the ■ defendant is entitled to a verdict.” The court refused each and all of these requests and the defendant duly excepted, so that the question of the defendant’s responsibility for the negligence of the chauffeur is squarely presented. The general proposition as to the responsibility for a tort is stated by Andrews, J., in King v. N. Y. C. & H. R. R. R. Co. (66 N. Y. 181) as follows: Where one person has sustained an injury from the negligence of another he must, in general, proceed against him by whose negligence the injury was occasioned. - If, however, the negligence which caused the injury was that of a servant while engaged in his.master’s business, the person sustaining the injury may disregard the immediate author of the mischief and hold the master responsible for the damages sustained.”

In Wyllie v. Palmer (137 N. Y. 248) it is said: “ The doctrine of 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.” ■ In that case a committee had arranged for a fireworks exhibition in the town of Auburn and had bought from the defendant, a "fireworks company, $400 worth of fireworks. A man and a boy had been sent by the company to set. up and fire off the exhibit. The boy negligently discharged a rocket into the crowd and the plaintiff was injured. Although concededly the general servant of the fireworks company, held that the company was not liable because at the time the boy was not engaged in the company’s business, but in the committee’s..

In Higgins v. Western Union Telegraph Co. (156 N. Y. 75) the company owned a building in which were elevators. Defendant’s general servant Algar ran the elevators. The building had been injured by fire and the company had entered into a contract with a builder to restore the building. The elevator was used for the tenants of the building, but it was also used as a movable platform for the contractor engaged in doing plastering in the elevator shaft. By Algar’s negligence the plaintiff, who was working at the plastering from the elevator as a scaffold, was injured. The court said : The general rule is that a party injured by the negligence of another must seek his remedy against the person who caused the in jury and that such person alone is liable. The case of master and servant is an exception to the rule, and the negligence of the servant, while acting within the 'scope of his employment, is imputable to the master. (Engel v. Eureka Club, 137 N. Y. 100.) But the doctrine of 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 the wrong at the time and in respect to the very transaction out of which the injury arose. The fact that the party to whose wrongful or negligent act an injury may be traced was at the time in the general employment and pay of another person does not necessarily make the latter the master and responsible, for his acts. The master is the person in whose business he- is engaged at the time, and who has the right to control and direct his conduct. Servants who aré employed and paid by one person may, nevertheless, be ad hoe the servants of another in a particular transaction, and that, too, when their general employer is interested in the work. * * * This distinction in the law of master and servant is made quite clear by the decisions in this court. * * * Beyond the scope of his employment, the Servant is as much a stranger to his master as any third person, and the act of" the servant, not done in the execution of the service for which he was engaged, cannot be regarded as the act .of the master. Arid if the servant step aside from his master’s business, for1 however, short a time, to do an act not connected with such business, the relation' of master and servant is for the time suspended and an act of the" servant during such interval is not to be attributed to the master. Here the relation of master and servant between the conductor.of the elevator and the defendant was suspended during the time that he was doing the work of the ■ contractor in moving the plaintiff up and down in‘the shaft. I am unable to distinguish this case in principle ■ from' the cases in this court already cited, arid the best considered cases in other jurisdictions are to the same effect.” " ,

In Fish v. Coolidge (47 App. Div. 159) the. plaintiff while crossing a streót was run against and thrown" down by- a team being ' driven by one Fish, The defendant was the owner of the team and vehicle. The claim of the plaintiff was that the. defendant was:, responsible for the act of the driver, on 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 that the driver, at the time, was- not’ engaged in the business of the defendant, and that, therefore, defendant was not liable.'.- Merwin, J„, cited Wyllie v. Palmer and Higgins v. Western Union Telegraph Co. (supra), and Shearman & Redfield on Negligence (5th ed. § 147), saying: “ 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, ihere 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.’” The court then said: “This view is sustained by many, casés. (Sheridan v. Charlick, 4 Daly, 338. * * *) In the Sheridan case it was held that when a coachmari, 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 Bard case [Bard v. Yohn, 26 Penn. St. 482] 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 present case * * * 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. * * * The defendant as well as the driver testified that upon the 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. Tile driver was without leave driving the team for his own pleasure. * * * 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.”

In Stewart v. Baruch (103 App. Div. 577) Laughlin, J., said: The fact, that the defendant was the owner of the automobile and the chauffeur was in his employ to operate it were sufficient to make out & prima facie case that the chauffeur was acting within the scope of his employmént at the time; but this was far from conclusive, and if the testimony of the chauffeur that he disobeyed the defendant’s instructions and took the automobile out for' his own pleasure is true, the defendant is not responsible for the accident.”

.From the foregoing cases we may deduce the following rules as thoroughly established: First, that a master is responsible for the negligence of his1 servant when engaged about the master’s business, and within, the scope of his employment; second, that a master is not -responsible for the negligence of his general servant if at the time of the negligence he has become ad hoc the servant of another, and'engaged in the business of that other, and' under his direction and control; third, that the master is not responsible for the negligence of his general servant if the negligent act was committed by the servant not in the prosecution of the master’s busir ness, but in the course. Of some private. enterprise of his own; fourth, that even if in the prosecution of that private enterprise the servant uses the" instrumentalities of. the. master for his Own purposes, without the knowledge and consent of the master, the master is not responsible.

For the purposes of this discussion, it must be conceded that the chauffeur was not engaged in the master’s business but- was • on a .private pleasure trip of his own and was using therein ’the' master’s automobile with the master’s knowledge and consent:- It is urged that the automobile was a dangerous instrumentality, and that having been intrusted .to the chauffeur the liability of the master still •attached because, of its dangerous character.' The automobile is not necessarily á dangerous device. It is an ordinary vehicle of pleasure and, business. It is no more dangerous per se than a team of horses and a carriage, or a gun, or. a sailboat, or a motor, launch. There is no evidence that the chauffeur was not competent and qualified to run the machine!. In fact lie was employed by- the defendant for that very purpose. If a. gamekeeper had borrowed his master’s gun and had gone from the/estate on a- hunting expedition of his oWn and.had negligently shot a man, Would the.'master be responsible because he was- using that instrumentality,, which might' be dangerous' if carelessly used, the gun ?

' I do not. think that the; question of the ignorance or consent of the master has any bearing whatever upon his liability; The fact that the servant has used the horses or the automobile without his consent has probative force .upon the proposition as to whether or not. the servant was engaged in the master’s business, and was acting within the scope of his employment. The question is whether he was or not. If. without the knowledge of his master, he took the car from the garage to a machine shop to have it fixed and an accident occurred, the fact of the want of knowledge on the, master’s part would not affect the liability, because the act would be within the scope of the servant’s employment and in the prosecution of the master’s business. If the chauffeur were granted a two weeks’ vacation and the master said to him: “ I am going off on a trip and will not need the machine; you may take it and use it for your own pleasure while I am gone,” I cannot think that he would be responsible for any negligence of the chauffeur during that period.

The whole doctrine of respondeat superior, by which one man is held responsible for another man’s acts, rests upon the proposition that in doing those acts he represented the master and was engaged in his business; but as said in the Higgins Case (supra): “Beyond the scope of his employment the servant is as much a stranger to his-master as any third person. * * * And if the

servant step aside from his master’s business, for however short a time, to do an act not connected with such business, the relation of master and servant is for the time suspended and an act of the servant during such interval is not to be attributed to the master.”

In Clark v. Buckmobile Company (107 App. Div. 120) Williams, J., said: “ The mere fact that the persons in charge of the machine, at the time of the accident, were employees O'f the defendant does not render defendant liable for whatever they did. Unless they were engaged in the defendant’s business, at the time the accident occurred, the defendant is not liable for any injuries to the plaintiff resulting therefrom. * * * Suppose they' had taken a day off for pleasure and had borrowed or leased the machine from the defendant to enable them to enjoy their' outing, would the defendant be liable for any injuries resulting from their negligence in operating the machine while they were out upon the road? Suppose,. after business hours any day, they had borrowed or leased the machine from the defendant to enjoy a few hours’ run across the, country for their own pleasure, would the defendant be liable for any injuries caused by their negligent operating of the machine while they were out ? It is quite apparent that in" the cases suggested no liability of the defendant would result. The reason is that in order fo establish liability the persons must not only be generally employees of the defendant, but must be employed in the defendant’s business and not merely in their own recreation and pleasure at the time the injuries are caused.” The whole court concurred.

I reach the conclusion that upon principle and authority the charge was fatally erroneous in the matter excepted to; that a question of fact was presented upon this evidence which was whether the chauffeur at the time of the injuries complained of was acting within the scope of his employment. The testimony that he was not so engaged coming from the defendant and his chauffeur must be considered as given by interested witnesses, and the jury might have refused to be bound by. it, but nevertheless it should have been submitted for their consideration. It may be that it would be wise and in the public interests that responsibility for an accident caused by an automobile should be affixed to the owner thereof, irrespective of the person driving it, but the law does not so provide. As said by Rapallo, J., in People ex rel. Tweed v. Liscomb (60 N. Y. 594): “It is the province of courts to declare the law as they find it to be, and adjudge cases accordingly; not to change or strain the law to make it fit any particular case.”

It follows that the judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Ingraham and Scott, JJ., concurred; McLaughlin and Houghton, JJ., dissented.

Houghton, J. (dissenting):

Of course it is the law that a master is not responsible for the negligence of his servant when the negligent act is committed by the servant while he is engaged in his own business, not connected with that of the master’s, or when he is using an instrumentality belonging to the master contrary to the master’s orders.

To my mind the element of consent to the use of the instrumen-. tality is important and controlling in the present case. It had been the habit of the defendant to allow his chauffeur to use the automobile to go to his meals, presumably to save time and expense. On the night in. question the chauffeur had takén the defendant to his apartments. It was a part of his remaining duty to take the machine to the garage, for it could not be left in the street or kept in an apartment house. The chauffeur requested permission to deviate from the direct route to the garage folgo uptown on some business for himself. The defendant told him that he might do that, but to hurry back, only be gone a short while, come right back.” The testimony of the chauffeur is to the same effect, hut a little more specific in that he says the defendant told him to-be careful and if anything happened to be sure and notify the defendant at once. The chauffeur was still in the pay of the defendant and his duty was to properly pare for the machine and to properly house it for the night. Even while he was gone on business of his own this duty remained with him and he was being paid for the performance off that duty by the defendant. It does not seem to me that the chauffeur was emancipated during the trip notwithstanding it was for his own pleasure. ' ■

I concede that if the chauffeur had taken the.machine without the consent of the master and contrary to his orders his act would then have been entirely outside the scope of his employment. In not one of the cases referred to in the prevailing opinion did the master consent to the use of the instrumentality which the servant was employing when the accident occurred, except in the case of Bard v. Yohn (26 Penn. St. 482) where there was evidence that a father consented that his son, who was his servant, might take a team for his own purposes. The father denied giving the consent and in the course of its opinion the court remarked that it did not matter whether consent was given or not. In all the other cases it was a question whether the relation of master and servant actually existed, or whether the servant had acted without consent and contrary to orders.

In the present case the relation of master and servant is admitted, .and the taking of the instrumentality by which the accident was caused was with the express consent of the master and it was a part of the duty of the servant to care for the vei’y instrumentality which produced the injury.

The question was presented in Rounds v. Delaware, Lackawanna & Western R. R. Co. (64 N. Y. 129) whether or not the master was liable where the servant .abused his authority and was reckless in the performance of his duty and inflicted unnecessary injury., and the court laid down the proposition that “ to make a master liable for the wrongful act .of a servant to the injury of a third person it is not necessary to show that he expressly authorized the particular act, it is sufficient to show that the servant was-engaged at the time in doing his master’s business and was acting within the. general scope of his authority.”

In Quinn v. Power (87 N. Y. 535) a ferry boat captain deviated from his course without compensation to permit a boatman to embark on a passing canal boat tow in the Hudson river and it was held that although the master gave no consent .and-.had no knowledge of the deviation the servant was. still engaged in the master’s business.

A driver of a truck deviated from his-return course to his master’s brewery to visit a friend; and leaving his horses unattended they started and were stopped by a stranger who in attempting to drive them back to .the place where the driver left them caused injury to a person in the street, and it ivas held in Williams v. Koehler & Co. (41 App. Div. 426) that the master was liable for the negligent act of the stranger because the negligence of the driver in leaving the team unattended was the proximate cause of the accident.

In the case at bar it was the duty of the chauffeur to. return the machine to its garage. The accident to the plaintiff happened while the chauffeur was returning from the place he had visited to the garage. '.

While a. powerful automobile may not, strictly speaking, be deemed a dangerous instrument, it may become go' if recklessly driven. They are so dangerous that the Legislature has prescribed that their'ownership must be registered and the driver licensed, and that speed in different localities must be regulated. (Motor Vehicle Law, Laws of 1904, chap. 538.) The defendant recognized this when he instructed his servant to be careful on the trip which he permitted him to make. If a railroad official should loan a locomotive to one of the company’s engineers for the purpose of hurriedly visiting a distant locality, it could hardly be. said that the engineer alone would be liable for injuries inflicted upon third persons.

I appreciate that the case is on the border line, but it seems to me that the chauffeur was engaged in the business of the master and deviated from the direct course to house the machine by the master’s express consent, and that, therefore, the relation of master and servant still continued, and that the court was justified in refusing to charge as requested, Or, under the proofs, to submit to the jury the question as to whether or not that relation had been severed.

I, therefore, vote for an affirmance of the judgment.

McLaughlin, J., concurred.

Judgment and order reversed and new trial ordered, costs' -to appellant to abide event.  