
    Henry Schoenherr, as Executor, etc., of Herman P. Bender, Deceased, Appellant, v. William Hartfield, Respondent.
    Second Department,
    April 14, 1916.
    Motor vehicles — death caused by chauffeur using automobile during absence of master — proof not justifying recovery—evidence—failure of master to deny alleged statements made by chauffeur — charge approved —use of automobile by chauffeur for private purposes.
    Action to recover for the death of a person tilled by a motor car which was operated by the alleged chauffeur of the defendant during the latter’s absence in Europe. Evidence examined, and held, that a judgment for the defendant rendered upon the verdict of a jury should be affirmed.
    In such action it is not error for the court to exclude testimony of a person who had talked with the defendant’s chauffeur shortly after the accident, to the effect that said person reported to the defendant, after he returned to this country, the chauffeur’s statement that at the time of the accident he had taken the car out to test it, and that the defendant made no comment on such statement. This, because the failure of the defendant to Answer the statement was not an admission of any fact pertinent to the issue.
    It is not error for the court to refuse to charge as requested where it has already charged fully and fairly upon the subject.
    In such action it is not error to charge in substance that if the jury find that the chauffeur took the car from the garage with the primary object of bringing some money to his wife he was not engaged in his employer’s business.
    Where the primary object of the chauffeur in taking the car from the garage was his own business or pleasure and the accident occurred when he was returning from a visit to his wife, the accident did not happen while he was acting within the scope of his employment, even though he claimed to be testing the car after repairs. The test was merely incidental to the unauthorized use of the car and would not justify a finding that the master is liable.
    Appeal by the plaintiff, Henry Schoenherr, aa executor, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 21st day of June, 1915, upon the verdict of a jury.
    
      Francis X. Oarmody, for the appellant.
    
      A. 8. Gilbert, for the respondent.
   JENKS, P. J.:

The action is for negligence. The plaintiff’s intestate, attempting to cross a city street in the borough of Brooklyn, was struck and was killed by a motor car driven by Babcock, the alleged chauffeur of defendant Hartfield, the alleged owner of the car. Hartfield was in Europe at the time of the casualty, and did not return therefrom until some weeks thereafter. The litigation, in addition to the questions of contributory negligence and of negligence, involved the ownership of the car, the service of Babcock, and the question whether at the time of the casualty he was about Hartfield’s business. The uncontradicted evidence elicited by the plaintiff is that Babcock traveled from the garage in the borough of Manhattan, where the car was kept, to the borough of Brooklyn to visit his wife at their home and to give money to her. But it was the contention of the plaintiff that the trip was also for the incidental purpose of testing the car, which had been under repair. The verdict was for the defendant, and the plaintiff appeals.

The plaintiff insists that certain exceptions to several rulings of the court are well taken. The plaintiff called as a witness Patten, a detective sergeant, who had talked with Babcock seventeen hours after the casualty, and under repeated objections and exceptions Patten testified to a subsequent conversation between Patten and Hartfield, whereat Patten had repeated to the defendant certain statements which Babcock had made to Patten in the said talk between them. The said conversation between Patten and Hartfield was not confined, however, to repetition of the said statements of Babcock, and finally, at the close of Patten’s testimony, the court under exception struck out so much of his testimony as related to the alleged statements by Babcock to Patten as to how the accident happened and what Babcock did in the said absence of the defendant. After protest and discussion, wherein the plaintiff’s counsel said that he did not know what “ goes out,” the court stated: “I said those matters which the witness stated as having been stated to him by Babcock as to what he did in the absence of Mr. Hartfield in Europe, what he said and what he did, about his work and about his services.” The court had not said precisely this, but had ruled out the testimony of Patten of alleged statements by Babcock to Patten “as to how the accident happened and what' he did in the absence of Mr. Hartfield.” The testimony which could be material and which was ruled out is that Patten had ashed Babcock what he was doing in Brooklyn, and he said he had to take the car out to have it tested. “ ‘ I had received my wages that day and I took them over to my wife. And what difference did it make whether I tested the machine in Brooklyn or Manhattan, so long as I was testing it ? ’ ” It does not appear that the defendant made any comment to Patten when Patten had repeated these statements of Babcock. So that all that could be argued as making against the defendant is that, without comment, he heard from Patten that Babcock had said to Patten that he (Babcock) went on a trip to Brooklyn to take his wages to his wife, and that, as he had to take the car out to test it, he could test it on such a trip. In the language of Reed v. McCord (160 N. Y. at 341), if these statements had remained in the case, “ That would have been in no sense an admission of any fact pertinent to the issue, but a mere admission of what he (defendant) had heard without adoption or indorsement. Such evidence is clearly inadmissible. (Stephens v. Vroman, 16 N. Y. 381.) ” (See, too, People v. Smith, 172 N. Y. 236.) In Stephens v. Vroman (supra) the court say: “The admission only proves that such out-of-door statements were actually made; but the statements themselves being worthless and incompetent as instruments of evidence, the manner in which they are brought to the notice of the jury is immaterial. The jurors have no right to be informed of them in any manner.” (See note to 1 Greenl. Ev. [15th ed.] § 202, where it is said that this ruling is in accord with that made in Roe v. Ferrars, 2 B. & P. 542, 548, and for the same reason.) The learned counsel for the appellant cites section 1053 of Wigmore on Evidence. In his note to that section Professor Wigmore cites in “ Accord Reed v. McCord (supra), with this comment: “ (if not merely in form an admission that he had heard of the fact). ” Further, such statements of Babcock cannot be regarded as the admissions of a servant, and, therefore, as binding upon the defendant. (Anderson v. Rome, W. & O. R. R. Co., 54 N. Y. 334; State Bank v. Brocton Fruit Juice Co., 208 id. 495.)

It is insisted that the court erred in refusal to charge this instruction, requested with the comment that counsel thought that the court had “ covered it:” “If the servant, in doing his master’s business, departs from his course to do something for himself, and, after doing his own work, is returning to the work of the master, and negligently injures one on the way back, the master is liable for the damage inflicted.” The court: “ I think I said it better than that. After returning to and is engaged in the work of his master—I charge that.” The court had already charged fully and fairly upon the subject.

The plaintiff excepted to the following instruction, given after the main charge, upon request of the defendant: “If the jury find from the evidence in the case that when Babcock left the garage that night, his primary object was to go to his wife’s home in Brooklyn and give her some money, then he was not on his employer’s business.” The jury could have found, indeed the proof thereof adduced from the plaintiff’s witnesses was undisputed, as the court said in its charge, that Babcock took the car from the garage in Hew York to his home in Brooklyn to call upon his wife to give her money, and that thereafter he, with his companions, left there and, after stopping at a place of entertainment, drove the car back to the garage in Hew York. There is no proof that even suggests that this errand was within the scope of Babcock’s authority. The most that can be asserted to fasten liability upon the master is that the chauffeur had the implied authority to test the car; that such a test was required, and that it was within his authority to make such test upon such a journey. In this case the servant had not gone out solely upon the business of his master and incident to that business had deviated from his way. The primary purpose of the journey was for the business or pleasure, or both, of the servant, and the use of his master’s vehicle was but an incident of the servant’s errand. It seems to me that the return was as much a part of the errand, so far as the use of the ear was concerned, as the going, for the use of the vehicle for the errand required its return to its place of keep. I do not attach importance .to the fact that the casualty occurred after the chauffeur had visited his house and while he was on return to the garage. (See Rayner v. Mitchell, L. R. 2 C. P. Div. 357, cited in Lord Halsbury’s Laws of England [vol. 20, p. 253], especially the comments of Lord Coleridge, Ch. J., on page 360.) In that case the driver, while on his return from his errand, had stopped even to bring home certain empty casks for his master.

Even if the servant had generally the right to test the car after repair, I think that the case falls within the principle stated in Shearman and Redfield on Negligence (6th ed. by Street, vol. 1, § 148): “ The mere fact that the injury complained of was caused by negligence of the servant in the performance of an act which, taken per se, was within the scope of his employment, will not impose a liability upon the master, if the act was merely incidental to the servant’s attempt to perform an act entirely beyond the scope of his authority.” The distinguishing feature of the case at bar from those cited by the learned counsel for the appellant is that in the latter cases the servant, while acting in the master’s business and within the scope of his employment, deviated from the line of duty to his master. In other words, the cases cited to us might apply if this journey had been taken in the master’s business or within the scope of the servant’s employment, in order to test the car, and his visit to his home was a deviation from his duty to his master and without the latter’s authority. If I am wrong in my disposition of this exception, the possible criticism upon the instruction is that it necessarily excludes a finding of liability upon the proposition that the servant, within his authority and the scope of his employment, used that journey incidentally to test the car and therefor the master might be held. But in any event the proof would not justify a finding of such liability. The chauffeur, called by the plaintiff, testifies that after the defendant had sailed for Europe on July 19, 1911, he worked on the car for two and a half weeks; that on Thursday of the week preceding Monday, August 14th, the car had been run and that there was nothing the matter with it then, and it appears that it. had been in use on that day from 2:48 p. m. until 8:14 p. m. The chauffeur testifies that nothing had happened to the car after it had been taken out on that Thursday; that he did nothing on the car on Friday or Saturday; that he took out the car on Monday, the day of the casualty, August 14 (and the records show that the car was out from 4:33 p. m. to 5:22 P. m), and that there was no defect apparent. He testifies that on this last occasion a child had thrown a stone that hit the radiator and put a “little leak in it ” — there was an open seam for half an inch in the honeycomb — and thereupon he filled up the hole temporarily and when he returned to the garage he soldered it and put new water in it, and that the work was done in an hour and a half or two hours. The evidence is that when the chauffeur and his companions left at 6:30 or 7 for this trip to Brooklyn, water had been pumped into the radiator and there was no leak. On cross-examination the chauffeur, called by the plaintiff, testified that all of the repairs had been made prior to the Thursday preceding the Monday of the casualty, and that he had done nothing thereafter save to solder the leak on Monday, in the face of the proof which I have described, and in the absence of any proof even from the expert called by the plaintiff that any test trip like unto that trip taken to Brooklyn was necessary in view of this leak, I think that a finding that such a trip was within the implied powers of the chauffeur to test the car would have been contrary to the weight of the evidence. I may note that the evidence of the plaintiff’s sole expert is not only silent on this subject, but indicates that the trips theretofore taken were sufficient to test the car.

The plaintiff insists that the court erred in not permitting interrogation of the chauffeur as to certain matters elicited on his cross-examination, as to his testimony upon such matters given at a previous trial. For the purposes of the record the court permitted the proposed inquiries to be put upon the record without the hearing of the jury. Examination of the questions shows that they could not be material save one: “ Q.

Had you been working all day?” (i. e., on that Monday). “A. I had been working all that afternoon.” This, if heard by the jury, it is asserted, could have been contrasted with his statement that he had finished work on the car on the Thursday before. But it is neither necessarily contradictory nor contrary to his testimony in this case if we recall that he had had the car out for a “ test ” on that Monday afternoon and had spent an hour or an hour and a half on that day in soldering it.

We perceive no errors in the dealing of the court with the deposition of Conchar. It ruled properly upon her answers in so far as they were irresponsive, hearsay, or involved her inferences or conclusions.

The counsel for the appellant has presented these questions with learning and ability, but it is to be remembered that a litigant cannot profit by error in rulings unless it be “so substantial as to raise a presumption of prejudice.” (Post v. Brooklyn Heights R. R. Co., 195 N. Y. 62.)

So far as the facts are concerned I find no ground that requires disturbance of the verdict. I advise affirmance, with costs.

Present — Jenks, P. J., Stapleton, Mills, Rich and Putnam, JJ.

Final judgment unanimously affirmed, with costs.  