
    Wyllie et ux. v. Palmer et al.
    
    
      (Supreme Court, General Term, Fifth Department.
    
    January 22, 1892.)
    Master and Servant—Negligence op Servant—Scope of Employment.
    Defendants, pyrotechnic manufacturers, sent a servant to assist their expert “in arranging the fixed pieces” of a pyrotechnic display given under the management of a local citizens’ committee, whose chairman directed the servant to assist in “firing rockets, ” and while thus engaged, under the direction of a member of the committee, he carelessly exploded a rocket, injuring plaintiff. Held, that defendants were not liable, as the wrong-doer, while firing rockets, was not their servant.
    Appeal from circuit court, Cayuga county.
    Action by Robert Wyllie and wife against James Palmer, Jr., and another. Plaintiffs appeal from a judgment for defendants dismissing the complaint upon the merits on a nonsuit directed, and from an order denying a motion for a new trial made on the judge’s minutes.
    Argued before Dwight, P. J., and Macomber and Lewis, JJ.
    
      James B. Cox, for appellants. Nathaniel Foote, for respondents.
   Lewis, J.

The citizens of Auburn, wishing to have an exhibition of fireworks on the '4th of July, 1888, at a public meeting held in that city, appointed a committee consisting of George H. Battams, T. H. Pearson, and others to take charge of the preparations for and management of the exhibition. Battams was chairman of the committee, and entered into negotiations for the fire-works by correspondence with the defendants, who resided in the city of Rochester, and were manufacturers of fire-works. Under date of June 12th, Mr. Battams writes: “We have decided to have a four hundred dollar display. Will you please inform me what you will give for that? Please give us a fine display. We would like to have a man to take charge of the display.” Defendants answered, under date of May 22d: “We inclose pro-gramme of exhibition. We also inclose printed sheet giving full instructions for firing the display.” Defendants wrote under date of June 14th: “We understand that we have your positive order for display to cost four hundred dollars, net, including expense of man, and we inclose you programme representing the goods we will send. We will put our best work in it, and know you will be pleased.” The defendants shipped the fire-works to the committee by rail. The committee received them, and paid the freight thereon from Rochester; and on the 3d day of July the defendants sent to Auburn their employe, Mr. Royce, an expert in fire-works. They also sent with him a boy 19 years old, by the name of Kemity, who was in their employ. When the time for exhibiting the fire-works arrived, on the evening of July 4tli, the committee, of which Mr. Battams was chairman, assumed control of the general management of the exhibition. Battams and Boyce, at the place selected by Battams, arranged that part of the fire-works known as the “fixed pieces.” It was arranged that the rockets should be fired at a place away from the fixed pieces. Kemity was with Battams and Boyce, assisting in putting up the frames of the set pieces; and while they were thus engaged, and after they had fired some of the set pieces, Mr. Pearson, one of the committee, came to where they were, and inquired of Mr. Battams if he should not go to work and fire some of the rockets. Battams replied: “Tes; take the young man, Kemity, and you and he can fire off the rockets,”—and they went to the rockets, and commenced firing them. Pearson testified: “I got the order from the chairman of the committee to go and fire them, and I suppose I was in charge of them.” He testified that he considered that he was in charge of it, and that Kemity did as he directed. Kemity, while firing the rockets, negligently and carelessly exploded a rocket which was lying upon the ground, and had not been prepared to be then exploded. The rocket flew along horizontally, and struck the plaintiff, who was standing in the street, witnessing the exhibition, breaking and burning her arm.

The sole question presented by this appeal is, was Kemity, while firing the rockets, the servant of the committee or of the defendants? There is no evidence in the case that the defendants sent Kemity to take charge of or assist in the explosion of the rockets, or that they expected that he would be employed at that work. While Kemity testified that he had theretofore had some experience in firing rockets, there was «no evidence that the defendants considered him competent to do such work. He was sent there for one purpose, and one only,—to assist Boyce in arranging the fixed pieces, Battams, as chairman of the committee, assumed to direct Kemity to assist Pearson in firing the rockets. Boyce gave him no directions about firing them. While Boyce was sent as an expert to look after the mechanical part of the work, the committee assumed the general management and direction of the exhibition. The defendants had sold and shipped the fire-works as requested, and, pursuant to the request of the committee, had sent Mr. Boyce to take charge of the display. When Battams assumed to direct the boy to fire the rockets, —a kind of work the defendants had not sent him to do,—it must be held, we think, that the boy was not, when thus engaged, the servant of the defendants. To hold the defendants liable for the acts of the boy when he was under the direction of the committee, and was doing work which the defendants had not directed him to do, would be doing violence to the rule of law which is well stated in Shear. & R. Neg. § 73, as follows: “He is to be deemed the master who has the supreme choice, control, and direction of the servant, and whoso will the servant represents, not merely in the ultimate result of his work, but in all its details. Servants who are employed and paid by one person may nevertheless be ad hoc the servants of another in a particular transaction; and that, too, where their general employer is interested in the work. They may, without consulting their master, but in good faith, assist a person independently employed to do something which shall benefit their master, but with which neither he nor they have any right to interfere, and in which they act entirely under the control of such other persons. In none of these cases is the nominal master responsible to strangers for their acts or omissions. ” The trial court, we think, correctly held that the defendants were not responsible for the negligence of Kemity in handling the rockets. The judgment and order appealed from should be affirmed.

All concur.  