
    Fannie Froomkin, an Infant, by Jacob Aranow, Her Guardian ad Litem, Appellant, v. Brooklyn Daily Eagle Company, Respondent.
    Second Department,
    June 8, 1906.
    Assault and battery—accidental blow received from defendant’s servant during altercation—when act not within scope of servant’s authority — when scope of authority question for court.
    The plaintiff was accidentally struck by the defendant’s servant, employed to deliver papers, during an altercation between the servant and a third person who had assaulted him. '
    
      Held, that as the altercation was a personal affair between the servant and the third person, he was not acting within the scope of his employment and the master was not liable;
    • That, although the question of the scope of a servant’s authority is generally for the jury, when only one inference may be drawn from the facts proved, the court may take the question from the jury.
    Appeal by the plaintiff, Fannie Froomkin, an infant, by Jacob Aranow, her guardian ad 'litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk
    of the county of Kings on the ,12th day of April, 1905j upon the dismissal of the complaint by direction of the court' after a trial at the Kings County Trial Term.
    
      Aaron J. Colnon [Raymond D. Thurber with him on the brief], for the appellant.
    
      John J. Kuhn [ William K. Dykman with him on the brief], for the respondent.
   Jenks, J.:

The action is against a master for assault by its servant.. The defendant, a publisher of a newspaper, employed the servant to-deliver its prints from one of its supply wagons to dealers and venders. At the close of the plaintiff’s case the testimony showed the following facts: * She was a vender of newspapers, standing in a large crowd about the delivery wagon waiting to buy papers. She knew the servant who' was then engaged in the .work of his master, they had always been on good terms, there was no trouble between them in any way on this occasion. She suddenly received a blow ' on her face from the hand of that servant. While the servant was . attending to Barker, á vender, another vender, Lewen, attempted to force the servant to attend to- him. The servant told Lewen to-wait a minute. Certain papers' were flung down in the wagon' by Lewen,. flung back by the servant and again flung by Lewen. ■ '¡Angry argument between these two men arose.

To bold the master-it must appear that the act of the servant, complained of was done in the' prosecution of the .muster’s business: (Meehan v. Morewood, 52 Hun, 566 ; affd. on opinion below, 126 N. Y. 667.) Wood on Master and Servant (2d ed. § 307) states the rule thus-: “The simple test is, whether they were/acts within the . scope of his employment; not,whether they were done while prosecuting the master’s business; but whether they were done “by the servant in furtherance thereof, and were such as may fairly be -said -to have been authorized by him. By authorized, is ’ not meant authority expressly conferred, but whether- the aQt was such as was incident to the performance of the duties intrusted to him by thé - master-,even though in opposition to his express and positive orders.” It is not enough to show that the servant was generally engaged in/ the master’s work at the time. In Rounds v. Del., Lack. & West. R. R. Co. (64 N. Y. 129, 136) it is said,:' “ It seems to be clear enough', from the cases in this- Statej that the act of tlie servant causing actionable injury to- a, third person does, not subject the master to civil responsibility in all cases where it appears -that the servant ' was-at the time in the use- of his master’s property, or because the act,- in some general sense, was done while he was doing .liis mas-' ter’s business,, irrespective óf the real nature and motive of the_ transaction.” ' .

It seems to me that at the close of the case theré was not sufficient testimony to sustain the. c'omplaint.. The learned trial court, however, reserved decision upon the defendant’s motion to dismiss, and so the defendant was' -put to its proof. It called thé servant only. He testified that lie was attending to Barker, a vender, when Lewen came up- and insisted on instant servicethat he told Lewen to wait a moment, and that Lewen- thereupon struck him over the head' with _ papers, became abusive,, called him vile -names, threatened to beat him, and finally raised his hand to strike, whereupon the witness, aimed a blow at Lewen, who dodged, and the blow fell upon the plaintiff. He went to the plaintiff, wiped- her face, explained the mishap and expressed his regret. He testifies that he struck at Lewen because he was provoked by his conduct and liis action. He further testifies that there was no system or rule of the master regulating the business intrusted to him, but that the method employed "was his own. There was no rebuttal. It seems to me, then, that there was not sufficient evidence to present any question to the jury as to whether the servant in striking this blow was in the prosecution of his master’s business. Of course, if Lewen had not been present there would have been no quarrel. And Lewen was present to transact business with the master through this servant. The difference arose over a dispute with the servant in the general charge of that business. But the blow was not given in the attempt of the servant to regulate the business that he was doing, or to enforce any rule or system of the master. The anger of the servant was aroused and provoked at Lewen’s outrageous conduct or attempted violence upon him, and action followed accordingly. Even the plaintiff’s witness testifies in effect that Lewen was the aggressor. The servant was attempting to punish Lewen, either for his outrageous conduct to him personally or his attempted violence against him. The matter was the personal affair of Lewen and the servant. 1 think, then, that the purpose of the servant in striking the blow was “ wholly disconnected from his employment.” (See Meehan v. Morewood, supra.)

The learned counsel for the appellant insists that there was a ' question for the juiy, for the reason that the servant was an interested witness perforce of his employment. But suppose that the case had been submitted to the jury for this reason. If the jury had entirely discredited his testimony and thrown it out, then I think that there would "have been no case made out against the defendant. I am well aware that the question of the Scope of-employment is usually for the jury. (Collins v. Butler, 179 N. Y. 160.) But there is no rule that every case which involves that question must be so submitted. I think the rule is well stated in Rounds v. Del., Lack. & West. R. R. Co. (supra, at pp. 137, 138) : If the master^ when sued for an injury resulting from the tortious act of his servant while apparently engaged in executing his orders, claims exemption upon the ground that the servant was, in fact, pursuing bis own purposes, without reference to his master’s business, and was acting maliciously and willfully, it must, ordinarily, be left to the jury to determine this issue upon a consideration of all the facts and circumstances proved. (See Jackson v. The Second Ave. R. R. Co., 47 N. Y. 274.) There may be cases where this rule does not apply, and where the court would be justified in taking the. case from the jury; but where different inferences may be drawn from the facts proved, and' when, in. one view, they may be consistent with the liability of the master, the case must be left to the jury.” I advise affirmance, with costs.

Woodward, Hooker and Rich, JJ., concurred.

Judgment affirmed, with costs.  