
    Freeman Murray, Adm’r, Resp’t, v. Luke Usher et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed December 20, 1889.)
    
    Negligence — Damages — Evidence — Expenses between injury and death.
    In an action by an administrator for the death of his intestate alleged to have been caused by defendants’ negligence, the trial judge refused to permit evidence to be given that the defendants paid the expenses of the support and maintenance of the intestate after the injury and of his proper interment. Held, no error.
    Appeal from judgment of supreme court, general term, third ■department, affirming judgment in favor of plaintiff entered on verdict of jury.
    This action was brought by an employee against two employers and Lewis, a co-employee. The defense was that Lewis was liable only for his personal negligence. He was the superintendent and was charged with the duty of looking after the platform which fell, and by the fall of which Blanchard, plaintiff’s intestate, was injured. The posts supporting the platform stood where the water was sometimes six feet deep and there was an accumulation of rubbish around the bottom of the posts. There was evidence tending to show that the platform for a year or two before the accident, had settled, and that it had been necessary to block it up; and also that it shook when loads and teams went over it.
    
      John A. Vance, for app’lts; Nelson L. Robinson, for resp’t.
    
      
       Affirming, 11 N. Y. State Rep., 789.
    
   Andrews, J.

We concur in the opinion below that a case was made for the jury upon the question whether there was negligence in failing to ascertain the defective condition of the platform and to take necessary means for its reparation. Certain questions of law have been argued by the counsel for the defendants, which we will briefly consider. The judgment could not be maintained against the defendant Lewis if the case presented an exception raising the question that his neglect to perform the duty imposed on him by his employers to inspect and repair the platform from time to time, so as to keep it in a safe condition, did not render him liable for injury resulting to third persons from such neglect Lewis and the plaintiff’s intestate were co-servants of the owners of the mill, the former having the general charge and superintendence of the business under the supervision of the owners, who themselves gave directions from time to time. They instructed Lewis to look after the necessary repairs, and the evidence justified the inference that in respect to the platform he omitted to perform his duty.

The general rule of respondent superior charges the master with liability for the servant’s negligence in the master’s business, causing injury to third persons. They may in general treat the acts of the servant as the acts of the master. But the agent or servant is himself liable, as well as the master, where the act producing the injury, although committed in the master’s business, is a direct trespass by the servant upon the person or property of another, or where he directs the tortious act In such cases the fact that he is acting for another does not shield him from responsibility. The distinction is between misfeasance and non-feasance. í'or the former the servant is in general liable; for the latter not. The servant as between himself and his master is bound to serve him with fidelity and to perform the duties committed to him. An omission to perform them may subject third persons to harm, and the master to damages. But the breach of the contract of service is a matter between the master and servant alone and the non-feasonce of the servant causing injury to third persons, is not, in general at least, a ground for a civil action against the servant in their favor. Lane v. Cotton, 12 Mod., 488 ; Perkins v. Smith, 1 Wils., 328; Bennett v. Bayes, 5 H. & N., 391; Smith’s Master and Servant, 216, and cases cited.

But the case was tried upon the theory that there was no distinction between the position of Lewis and that of his co-defendants. The defendants joined in their answer and in the appeal, and no suggestion was made at any point that the action could not be maintained against Lewis, although there was negligence on his part in failing to inspect and repair the platform. The grounds specified in the motion for nonsuit were presented at first in behalf of all the defendants, and then of each separately. But they contain no suggestion that Lewis stands in any relation to the action different from that of his co-defendants, but assume that all. the defendants stand in the same situation. The point now taken that the action was not maintainable against Lewis because he was an agent and servant of the other defendants, and was chargeable-with non-feasance only, not having been raised by any exception,, cannot be entertained.

The defendants also urge an exception taken to the refusal of the trial judge to permit evidence to be given that the defendants paid the expenses of the support and maintenance of the intestate after the injury, up to his death, and of his proper interment,.. There was no error in this ruling. The expenses incurred by a person injured, for medical treatment or for support between the happening of the injury and the death resulting therefrom, are not recoverable by his administrator in the statutory action given by the act of 1847, and it would seem to follow that the payment of such expenses by the wrongdoer cannot be shown either in bar orín mitigation of damages. If .they were paid in satisfaction of the wrong under an agreement with the intestate, and under circumstances which-would sustain a plea of accord and satisfaction, and' show an extinguishment of the cause of action in favor of the intestate in his life-time, the case of Littlewood v. The Mayor, 88 N. Y., 24, might have some application. It was there held that the action given to the next of kin by the statute, while not a continuation of the same' right of action vested in the intestate, was nevertheless made dependent on the existence of a cause of action in the decedent at the time of his death, not satisfied or otherwise discharged, for the recovery of damages for the same negligence.

But the proof was not offered with a view of showing that the cause of action in favor of the decedent had been satisfied or discharged, and no such defense was set up in the answer. The suggestion that the evidence was competent to show that the estate of the intestate was not depleted by the disability caused by the injury, has a sufficient answer in the fact brought out by the defendants that the intestate had no estate, and it is not necessary to consider whether the evidence would be competent under other circumstances.

The exception to the charge is not, we think, well taken. The charge, as a whole, stated the correct rule of law, and the clause objected to, by fair construction, presented the point that the sudden development of the insecurity of the platform would not excuse the defendants, if the failure to ascertain the defect before that was attributable to want of proper or competent inspection, and the charge so construed was unobjectionable.

We think that no error was committed on the trial to which any exception was taken, and the judgment should, therefore, be affirmed.

All concur.  