
    The P. Cox Shoe Manufacturing Company, Plaintiff, v. William H. Gorsline, Defendant.
    
      Master and serva/nt— laborers engaged in oepairing a sewer who contra/ry to directions remove a plug from, an independent pipe — the liability of the master depends upon their purpose in so doing— their statements at the time are res gest®..
    Where a man, employed to remove an obstruction in a sewer located under the floor of the basement of a building, sends three common laborers to perform the work, and one of such laborers calls his employer’s attention to the fact that water is dripping from an elbow in an iron pipe which leads from the roof and passes under the basement floor in the immediate vicinity of the sewer but is not connected therewith, and the employer instructs the laborer not to touch the pipe, and the laborer subsequently in violation of his orders removes a plug from the pipe, thus permitting the water therein to escape and flood the premises, the question whether the employer is liable for the damage done by the water depends on the purpose for which the laborer removed the plug. If he removed the plug from mere idle curiosity to see how much water there was in the pipe, the act was not within the scope of his authority, and the master is not liable; but if he really believed that the removal of the plug would aid in accomplishing the end sought by the master, and removed the plug for the sole purpose of bringing about that result, the act was within the scope of his authority and the master is liable for the consequences thereof.
    Evidence that the laborer when removing the plug from the pipe said that the pipe was stopped up and was the cause of the trouble, is competent against the master as part of the oes gestee.
    
    Motion by the plaintiff, The P. Cox Shoe Manufacturing Company, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon a non-suit granted by the court after a trial at the Monroe Trial Term.
    
      James M. F. 0J Grady, for the plaintiff.
    
      George F. Yeoman, for the defendant.
   Williams, J.:

The motion for a new trial should be granted.

The action was brought to recover damages for injuries to personal property alleged to have been caused by the negligence of the defendant. There was upon the trial no dispute as to injuries and the amount of damages, nor was there any dispute as to the employees of the defendant having caused the injury and damage. The whole controversy was over the question whether the acts of the employees were within the scope of their employment so as to render the defendant responsible therefor.

The accident resulting in the injury and damage complained of occurred in the basement of a manufacturing building, on the corner of West and Elizabeth streets, in the city of Rochester, owned by the Rochester Savings Bank and occupied by the plaintiff. The basement was over one hundred feet long along the south side and thirty-seven feet wide along the west end. The basement floor was covered with cement, A sewer or drain had been laid about six inches below the cement bottom, along the south and west walls, six or eight inches from the wall, of pipe about seven inches in diameter. This sewer or drain emptied into a well hole in the northwesterly corner of the basement, and there was a connection between the bottom of this well hole and the sewer outside the building in the street. This well hole was six feet three inches long, three feet wide and two feet six inches deep, its length being from north to south. About eight feet from this well hole and near the center of the west wall was a chimney breast, extending out from the face of the wall two feet five inches. On the north side of this chimney breast in the corner between it and the west wall was a five-inch iron pipe which, extended from the roof to the basement, entered the cement floor and passed along under the same to the well hole and through that to the pipe connecting the well hole with the sewer in the street. The purpose of this pipe was to take the water from the roof and conduct it to the sewer outside the building. The bend in the pipe under the floor was nearly at right angles, and was liable to get clogged up at the angle with loose stuff washing into it from the roof, so as to set the Water back up in the pipe. About two feet above the floor of the basement there was an elbow' or Y in this pipe, with a screw cap or plug in the end, and when this cap or plug was removed there was an opening through which any obstruction in the pipe at the angle could be removed. This roof pipe and the sewer under the basement floor were in no way com nected with each other, each emptying independently of the other into the sewer outside the building. Both were under the floor of the basement, however, before they reached the well hole, and when the well hole was filled with water the manner in which they were ■connected with the pipe leading from such hole to the sewer outside the building was not apparent or visible; and at the time of the accident the well hole was full of water.

In the early part of May, 1900, the drain or sewer under the basement floor became obstructed so that the water did not run off into the well hole, but oozed up through the floor. The owner, upon being notified there was trouble in the cellar, employed the defendant to ascertain what the difficulty was and to remedy it. The defendant set one man at work on Saturday, who took up one length of the pipe; two men were sent on Monday, and as the work progressed it became evident that the sewer its whole length would have to be taken up, except a few feet next to the well hole. The two men worked on Monday and on Tuesday and Wednesday morning three men were at the work. They were common laborers, Poles, and no foreman was with them. The defendant looked after them himself at times. He came there Wednesday morning. The men were working on the south side of the cellar, having finished the westerly end. One of the workmen, Sedor, called defendant’s attention to the fact that there was water dripping from the elbow or Y in the iron roof pipe and asked him to look at it. It was dark where the leak was, but they lighted a match and looked at it. The defendant told Sedor not to touch that at all, that it was not Sedor’s business or defendant’s, to leave it alone, it was no bother of Sedor’s. After defendant went away Sedor said he wanted to know what was in the pipe, that he did not think there was much water in the pipe, that he would make the job good and be done with it, and directed Fullis, who was working with him, to get a wrench to take off the cap or plug. Fullis got ,the wrench from some of plaintiff’s workmen in the basement, and applying the wrench to the cap or plug, turned it a little, the water came out more and he tightened it up again. Then Sedor took the wrench from Fullis, said he was not afraid to open it, loosened the cap or plug and the water came out with great force, knocking him down and causing the injury and damage in question.

Upon these facts, which were not controverted, the nonsuit was granted, the court refusing to submit to the jury the question whether the men were acting within the scope of their authority in opening the roof pipe and letting the water into .the basement, and refusing to permit evidence to be given as to why the men opened the pipe and what they said at the time they opened it, or just before or just after it.

It seems to us that the court erred in rejecting some of the evidence offered; and then in taking from the jury the question as to whether the men were acting within the scope of their authority and employment in opening the pipe and letting out the water.

The test, of a master’s responsibility for the act. of his servant is, whether the act was done in the prosecution of the master’s business ; not whether it was done in accordance with the instructions of the master to the servant. When, therefore, thé servant, while engaged in the prosecution of the master’s business, deviates from his instructions as to the manner of doing it, this does not relie ve the master from liability for his acts.” (Cosgrove v. Ogden, 49 N. Y. 255, and cases cited; Quinn v. Power, 87 id. 535, and cases cited.)

For the acts of the servant, within the general scope of his employment, while engaged- in his master’s business, and done with a view to the furtherance of that business, and the master’s interest, the master will be responsible, whether the act be done negligently, wantonly or even willfully. * * * But if a servant goes outside of his employment, and without regard to his service, acting maliciously, or in order to effect some purpose of his own, wantonly commits a trespass, or causes damage to another, the master is not responsible.” (Mott v. Consumers' Ice Co., 73 N. Y. 543; Girvin v. N. Y. C. & H. R. R. R. Co., 166 id. 289.)

“ Where a master claims exemption from liability for the tortious act of his servant while apparently engaged in executing his orders, upon the ground that the servant was in fact pursuing his own purpose, without regard to his master’s business, and was acting willfully and maliciously, it is ordinarily a question to be determined by the jury.” (Rounds v. D., L. & W. R. R. Co., 64 N. Y. 129, and cases cited; Dwinelle v. N. Y. C. & H. R. R. R. Co., 120 id. 117, and cases cited.)

These principles furnish the legal test as to the defendant’s liability for the acts of his agents which caused the injury and damages in question. The difficulty arises in applying these principles to the facts of the case. As a matter of fact there was no connection between the roof pipe and the sewer under the floor, so as to make it necessary or proper to meddle with the roof pipe in order to relieve the basement from the trouble in the sewer, but it does not appear that the three men knew this. The roof pipe went into and under the cement bottom of the basement in the immediate vicinity of the drain or sewer, and the well hole being filled with water, it may not have been apparent to these men whether the roof pipe and the drain or sewer were connected or not. The real question was what they removed the cap "or plug for. Did they do it from idle curiosity to see how much water there was in the pipe, and knowing and understanding that it had nothing to do with the job they were engaged in, the relief of the drain or sewer 1 Then it was not within the scope of their authority. Did they remove the cap or plug for the purpose and with the view of aiding them in the relief of the sewer, and honestly believing it was a proper thing to do to accomplish the end they were there to accomplish ? Then it might be said to be within the scope of their authority. They were evidently not very intelligent men, and were left without any foreman to direct them, and the defendant only looked after them occasionally. The leader in the matter, Sedor, said as he directed the wrench to be brought and as he was about to remove the plug or cap, that he would make the job good and be done with it. He was asked by the plaintiff at the trial if he took the cap or plug off to help the work there, and under defendant’s objection was not allowed to answer. One of the other men was asked to state whether Sedor, when he got the wrench on the pipe, said that the pipe was stopped up and was the cause of the trouble, and under the objection of the defendant he was not allowed to answer; and again the same witness was asked to state whether Sedor said anything at the time he directed the wrench to be brought about the pipe being stopped up, and that being the cause of the trouble in the sewer, and under the objection of defendant he was not allowed to answer. If this evidence had been permitted to be given, it may well have been of such a character as to lead to the conclusion that Sedor’s real object and purpose in removing the cap or plug was to aid in accomplishing the end they were seeking, the relief of the sewer. The jury at least would have been justified in so finding. The evidence was proper as being part of the res gestee, of the acts causing the injury and damage, and could only be excluded upon the theory that it was of no consequence what Sedor’s object or purpose was in removing the-cap or plug. It seems to us, however, it was important to ascertain and determine what the object and purpose was, in order that it might have its fair weight with the jury in settling the question to be determined whether the acts causing the injury were fairly within the scope of the authority of the defendant’s employees. The question was one not free from doubt. It was near the border line, and under all the circumstances, within the principles already stated, was for the jury and not for the court. All the circumstances should have been admitted in evidence, so far as competent, and the question then left for the determination of the jury-

■ These men were put there to accomplish a certain end, the relief of the drain or.sewer. They knew what they were there for. It is true they were told just what to do to accomplish the end sought; to take up the sewer; they were told to leave the roof pipe and plug or cap alone ; still if they, in their want of judgment and discretion, really believed the removal of the cap or plug would aid in accomplishing the end sought by their master, and they removed the cap or plug for the sole purpose of bringing about the result sought, the relief of the sewer, then clearly, within the principles above stated, the defendant, their master, would be responsible for their acts, ' which would be within the scope of their authority.

We conclude, therefore, that the court erroneously excluded evidence offered by the plaintiff, and erroneously granted the nonsuit in the case.

The motion for a new trial should be granted (plaintiff’s exceptions being sustained), with costs to plaintiff to abide event.

All concurred.

Plaintiff’s exceptions sustained and motion for new trial granted, with costs to the plaintiff to abide event.  