
    Moses Walker, App’lt, v. William C. Wilson, Resp’t.
    
      (Supreme Court, General Term,, Third department,
    
    
      Filed July 3, 1888.)
    
    1. Master and.servant—Master responsible for wrongful acts of SERVANT WITHIN SCOPE OF HIS EMPLOYMENT — FACT OF RELATION MUST BE KNOWN.
    While a master may be held liable for the wrongful act of his servant, acting within the scope of his employment, it is necessary, in order to maintain such an action, that the fact of the relation should he established.
    2. Tort—Requisites for action against party on.
    A person cannot be charged with damages for a wrongful act unless the fact he shown that the act was committed by him or by his procurement.
    Appeal from a judgment entered in Clinton county, September 21, 1887, upon an order of the court directing a ver diet of no cause of action, and from such order. The action was brought to recover damages sustained by plaintiff being-thrown from his cart while driving in the highway, by frozen shavings and saw-dust carelessly placed, and left therein by defendant. The defense was a general denial • and that such shavings were placed in the highway at the request, and by direction, of the commissioner of highways.
    
      George H. Beckwith, for app’lt; R. Corbin, for resp’t.
   Learned, P. J.

In April, 1885, the plaintiff, in the evening, drove with his horse and cart up a somewhat steep road in front of the house where defendant lived. One of the-wheels struck some “chunks,” or what he calls “banking,” or frozen shavings, and the cart was upset and he was injured. He brought this action against the defendant and on the trial was nonsuited, principally, it would seem, on the ground that the defendant was not responsible for this obstruction in the road.

The facts, so far as they are material, are as follows • The defendant’s son, Ira, lived with his father. A short time-before the accident happened, Ira one day removed the banking from around defendant’s house and wheeled it into the road. It was frozen and in “ chunks” thirteen to twenty inches thick.

A day or two before the accident, a person passing said to-defendant that those things might be dangerous there; to which defendant replied, they will thaw out in a few days- and we will scatter them about.

It is proved that on one occasion Ira went to a workman and engaged him to do some repairing on this house where defendant lived, for which defendant paid. On that occasion Ira carried the brick and mortar. So, perhaps, the testimony means, though it is doubtful. It is in these words:

“ Did Mr. Wilson inform you who would carry your mortar and brick? No, sir, he didnt say anything. Who did, Ira? (Query. Say anything.)”

There is no evidence as to the age of Ira.

The fact that Ira, on the ocasion mentioned, went for a. workman to do repairs on the house where defendant lived shows only that he was a messenger at that time. It would hardly show that Ira was in the defendant's employment as a servant.

And if Ira carried the bricks and mortar, that may have been a merely voluntary act, or the workman may nave-. paid him. Defendant did not tell the workman that Ira would do so.

It is not in evidence that defendant told Ira to remove the banking, or that he saw him doing it, or knew anything about it. The casual remark that the things would thaw out in a few days, and that they would scatter them, is consistent, with defendant’s ignorance of the place where the frozen shavings or “chunks” came from. It would be a natural remark, in regard to any frozen lumps lying in the street, whether they came from the defendant’s house or elsewhere. And hence the remark does not show that defendant knew that Ira had wheeled these frozen shavings out and had put them in the street. The witness who made the remark says that he does not know where this banking (that is the frozen shavings) came from. And if defendant expressed a willingness to scatter the shavings about when they were thawed out, that does not show that he had caused them to-be put there or knew whence they came.

One may be responsible for the acts of a servant in the line of his employment, but there must be proof showing that the person who did the act was the servant of the person charged.

The plaintiff says that this action is not based on defendant’s negligence, but on his wrongful act. Then it should not be left to the jury to guess that the defendant must have.told Ira to remove the banking, or to guess that defendant must have seen and known of the placing the banking in the street, and must have known that it came from his house.

There appears to have been a house on each side of defendant’s. It does not appdar that there was not similar banking around those houses.

There was no proof of anything done by Ira, prior to the removing of the banking, which tended to show that he was a servant of the defendant, for whose acts defendant would be liable. And it is not shown that that removal was by defendant’s direction.

We think the judgment should be affirmed, with costs.

Landon and Ingalls, JJ., concur.  