
    Charles H. Keep and Others, Appellants, v. Maurice G. Walsh and Others, Respondents.
    
      Negligence—liability of the master for the acts of his servant — when a negligent unauthorized act is within the scope of the employment.
    
    In an action brought by the owners of a store to recover the value of a plate glass window broken by one of the defendants’ clerks with a handcart which he 'bad borrowed, without the authority or knowledge of the defendants, for the purpose of moving -.some of the latters’ goods, the court charged the jury that it was necessary to a recovery by the plaintiffs that they should find that the clerk was acting under the instructions of the defendants, or that he was acting independent of any directions previously given, but that his acts became known to the defendants and were approved during the time that he was engaged in the service and before he attempted to return the cart.
    
      Held, that the charge was erroneous :
    That the test of the liability of a master for a negligent act of his servant depends upon the question whether the servant is acting within the scope of his employment and in the business of the master, and that if the motive which prompted the act and the purpose sought by it, are within the scope of the servant’s employment and in the.business of the master, and are not independdent of or outside of his employment or. disconnected with the master’s, business, the master is liable for the act.
    Appeal by the plaintiffs, Charles H. Keep and others, from a judgment of the Supreme Court in favor of.the defendants, entered in the office of the clerk of the county of Niagara on the 24th day of July, 1896, 'upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of August, 1896, denying the plaintiffs’ motion for a new trial made upon the minutes.
    Plaintiffs are the owners of a store lcnowii as No. 99 Main street, in the city of Lockport; it was leased by them to the American Express Company, and was occupied by the company on July 22, 1895. The defendants occupied a double store,. Nos. 94 and 95, on the same street-, and were there carrying on a retail dry goods business on tlie last-named date.- They had purghased another .stock of goods then located in a store sixty feet distant from their store and on-the same side oí the street. , The defendants had in their employ a'number of clerks, among whom-'was Fred J. Conuiif. The clerks and employees ■ of defendants were- directed to 'move the stock of goods so-. purchased to the stoves occupied- by defendants, and to move it by hand. One handcart was procured and furnished by defendants to-be used in. moving the stock, and fixtures when found necessary. The clerk Conniff, without the direction, authority or knowledge of the defendants, went across the street and borrowed a handcart of the American Express Company and with it moved a showcase which was a part of the stock and property purchased by defendants which was to be moved to their store, and then returned the cart to the express company; and, while returning the same, broke a plate glass window in plaintiffs’ building with the cart. The defendants gave Conniff no direct authority to borrow the American Express Company’s cart. and- knew nothing about Conniffs borrowing or using it. ,
    - Taylor & Tfioholls, for the appellants. •
    
      T. F. Fwig, for the respondents.
   Green, J:

The learned trial justice charged the jury that in addition to prov-. ing damage and the negligence of defendants’ servant in causing same, “ The plaintiff must -establish more .than those facts in order to justify you in reaching a conclusion adverse to that of the defendants. It must appear that the servant was acting under the instructions of the defendants, or that he was acting independent of any direction previously given, but that the. acts of the servant became-known to the defendants and were approved during the time that he was engaged in the service and before he attempted to. return the truck to the American Express Company’s office.”

To this the plaintiffs’ counsel excepted, and in that connection asked the court to charge “ that all those elements were not necessary ; that if he was given general instructions to remove those goods by the defendants and borrowed this track for the benefit and in the furtherance of the labor and in the business of the defendants, ' that then the plaintiffs can recover.” By the Court: •“ 1 charge he cannot, and give von the exception; there is no such emergency-authorizing the witness to depart, from the instructions.”.-

. -We are of the opinion that there was prejudicial error in the portions of the charge excepted to. The plaintiffs were entitled to have the jury instructed that if the plaintiffs were damaged by the.negligent act of the .-servant while he was acting "within the general scope of. his employment, and if the motive which prompted the act and -the purpose, sought by it were within the- scope of his employment and in the "business of defendants, and not independent or outside of his employment, or disconnected with the masters’, business, the plaintiffs were entitled to a verdict. (Wellman v. Miner, 19 Misc. Rep. 644, and cases cited; Burns v. Poulsom, L. R. [8 C. P.] 563; Atchison, etc., R. R. Co. v. Randall, 40 Kans. 421; Walker v. Johnson, 28 Minn. 147; Pittsburgh, etc., R. R. Co. v. Kirk, 52 Am. Rep. 675; S. C., 102 Ind. 399; Whart. on Neg. [2d ed.] 167.)

If the jury should find, upon all the evidence, that the act of the servant was no part of his business, nor within the scope of his employment, nor for the benefit of defendants, nor in furtherance of their interest, then they are not liable. If the servant, in borrowing and returning the truck, was carrying out a separate and independent purpose and motive of his own, and in doing so ceased to be an actor within the scope of his employment and within the range of his master’s business, then the defendants are not liable. “ The test of the master’s responsibility for the act of his servant is not whether such act was done according to the instructions of the master to the servant, but whether it is done in the prosecution of the business that the servant was employed by the master to do.” (Cosgrove v. Ogden et al., 49 N. Y. 255.)

We are of the opinion that the portion of the charge excepted to by the plaintiffs was.erroneous, in that the jury was instructed that, before the defendants could be held liable for the negligent acts of their servant, those acts must'have become known to the defendants and been approved by them during the time he was engaged in the service, and before he attempted to return the truck to the American Express Company’s office.

The judgment should be reversed and a new trial ordered, with costs to abide the event of the action.

' All concurred.

■Judgment and order reversed and a new trial ordered, with costs to abide the event.  