
    Addie Douglass, Respondent, v. John H. Hewson, Appellant.
    Third Department,
    January 4, 1911.
    ¡Motor vehicle — negligence — injury to pedestrian by automobile — úse of car by chauffeur — when not acting in master’s business — erroneous charge.
    Where in an action to recover for injuries to a, pedestrian caused by an automobile, it appears that at the time it was being used by the defendant’s chauffeur for the purpose of carrying his own laundry to another town, although he liad been directed by the defendant hot to use the machine without express orders, except that he might use it when going to and from his meals, the chauffeur was not acting in his employer’s business or within the scope of his employment. Hence, it is error to charge in substance that, if the defendant consented that his chauffeur might use the car, he is. liable for his negligence.
    Houghton. J., dissented, with opinion.
    Appeal by'the defendant, John H. Hewson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 21st day of April, 1910, upon the verdict off a jury for $1,400, and also from an order entered in said clerk’s office on the 28th day of April, 1910, denying the defendant’s motion for a new trial made upon the minutes.
    The defendant and his family were staying at the Hotel Champlain with his automobile. His chauffeur was boarding at the chauffeurs’ lodge connected with the hotel He paid the chauffeur six dollars a week and the expenses of the trip, and the defendant assumed that the laundry bill was to be included in the expenses, although it had never been discussed. He had told the chauffeur that the automobile was not to be used by him upon any occasion or taken out without 1ns express orders. At the hotel it was necessary for the chauffeur to go about half a mile for his meals, and, as he was lame, the defendant authorized him to use the automobile for that purpose. The chauffeur one night, without the defendant’s knowledge or consent, invited two other chauffeurs and hackmen to go to Plattsburgh with him in the car. He took with him a package of his own for the laundry, and said he wanted to get shaved. They went to Plattsburgh but he did not take the package to the laundry but brought it back with him, and apparently made no effort to go to the laundry or to get shaved. In returning he negligently injured the plaintiff. Both the defendant and the chauffeur swore that the automobile was taken out this night Without the knowledge or consent of the defendant, and that it never before had been used by the chauffeur for his own purposes except by the chauffeur in going to and from his meals while they were staying at the hotel. It does not appear whether there was or was not a -barber shop or laundry at or connected with the hotel. While the chauffeur was apparently under arrest the defendant was sent for, and some witnesses swore that the chauffeur said, while the defendant was in the room and apparently within hearing distance, that he had the permission of the defendant to use the machine, and that he did not deny or confirm the statement.
    
      Weeds, Conway & Cotter [Thomas B. Cotter of counsel], for the appellant.
    
      John H. Booth, for the respondent.
   Kellogg, J.;

The defendant contended that the use of his automobile by the chauffeur in taking the latter’s clothing to the laundry was not the master’s business or within the scope of his employment, and relied on Cunningham v. Castle (127 App. Div. 580). The court announced that it would not follow that case and that if the defendant consented that the chauffeur might use the car he was liable for the chauffeur’s negligence. This was duly excepted to. This same proposition was reiterated in the charge. In response to requests to charge, and at the suggestion of the plaintiff’s counsel, this was perhaps somewhat substantially modified. After a careful'reading of the charge and the rulings upon the various requests,.it is clear that the jury did not fully understand the real question of law which applied to.the facts in the case, and it. is probable that it acted in the'belief that the proposition first stated was right. The question of the defendant’s liability, as it was finally left before the jury, ■was in such an uncertain manner that, the court is satisfied that the defendant was prejudiced by it. The evidence is not sufficient to show that the chauffeur, at the .time of the negligence, was acting in his employer’s business or within the. scope of his employment. '

The judgment and order should be reversed upon the law and the facts, and a new trial granted, with costs to the appellant to' abide the event.

All concurred, except Houghtou, J., dissenting, in opinion.

Houghton, J. (dissenting):

I realize that it is not the law, but I trust it soon will be by statute or authoritative decision, that , the owner of an automobile shall' ?'espond in damages for . the negligence of his chauffeur when he consents that he may take the machine'and use it even for his own business or pleasure." There is no more reason why an owner should not be liable.under such circumstances than there is that a railway company should' be exempt from liability if it permitted its engineer or motorman to take a locomotive or car and run it upon its tracks for his own pleasure or convenience. Courts would hesitate to say that if, under such circumstances, an accident occurred to a traveler the railroad company was exempt from liability because its servant with its consent was using its locomotive or car for his own pleasure. A powerful automobile is ordinarily driven along the highway as rapidly as electric cars or ordinary railway trains and is precisely as dangerous to the traveler, and oftentimes more so, because it is confined to no.particular track.

The present case was not tried upon any such theory, however* but rather up on the theory that the chauffeur was upon the business of the master with his knowledge and consent. It was a fair question for the jury whether or not it was the business of .the master for the chauffeur to take the machine to go to Plattsburgh for the purpose of getting his apparel laundered. It does not appear that there was any way of his obtaining clean linen at the Hotel Champlain, but whether there was or not the master could permit him to patronize a public laundry. The defendant was upon a tour through the Adirondacks with his family. He was paying his chauffeur small wages and all of his expenses. In order to present a proper appearance it was necessary that he have clean linen. The defendant does not deny that he was to pay such an expense. On the contrary, he virtually concedes that he was. ' It was also a fair question for the jury upon the proof as to whether the defendant consented that his chauffeur take the machine to go to Plattsburgh for the purpose indicated.

Of course there can be no question of the negligence of the chauffeur. He ran into two conveyances in nearly as many rods.

The judgment is a moderate one and I think it should be affirmed.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  