137 N.Y. 248, Wyllie v. Palmer

Citation:137 N.Y. 248
Party Name:ROBERT WYLLIE et al., Appellants, v. JAMES PALMER et al., Respondents.
Case Date:February 28, 1893
Court:New York Court of Appeals

Page 248

137 N.Y. 248

ROBERT WYLLIE et al., Appellants,


JAMES PALMER et al., Respondents.

New York Court of Appeal

February 28, 1893

Argued January 31, 1893.

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James R. Cox for appellants. If, in any view of the evidence, a verdict might justly have been for the plaintiffs, this case should not have been taken from the jury. ( Sheridan v. R. R. Co., 36 N.Y. 39; Train v. Holland, 62 id. 598; Pratt v. Ins. Co., 130 id. 212; Clemence v. Auburn, 66 id. 338.) This contract, which defendants performed for $400, was an executory contract for a display, and not for sale of materials. ( Blazy v. McLean, 129 N.Y. 49; Kenyon v. Assn., 122 id. 254, 258; White v. Hoyt, 73 id. 505; Dwight v. Ins. Co., 103 id. 341.) These young men, Royce and Kemitz, were the agents and servants of defendants, acting completely within the scope of their employment, doing their master's business. ( Stone v. N. T. Co., 38 N.Y. 241; Ochdenbein v. Shapley, 85 id. 220; Quinn v. Power, 87 id. 537; R. R. Co. v. Derby, 14 How. [ U. S.] 486; Kimball v. Cushman, 103 Mass. 194.) Had Battams or Pearson directed Kemitz to do something beyond the scope of his employment, and he should do it negligently, resulting in damage to a stranger, certainly defendants would not be liable. (1 Add. on Torts, 476, 477, 488, 490; Wood on Mast. & Serv. 505, § 307; Smith's Merc. Law, 154, 155; Wharton on Neg. §§ 157, 162, 165, 171; Limpus v. Omnibus Co., 1 H. & C. 526; Dalyell v. Tyrer, El., B. & El. 899; Crocker v. Calvert, 8 Ind. 127.) This ad hoc doctrine only obtains when the servant is acting beyond the scope of his employment. ( Murphy v. Caralli, 3 H. & C. 462; Elder v. Bemis, 2 Metc. 599; Murray v. Currie, L. R. [ 6 C. P.] 24; Kimball v. Cushman, 103 Mass. 194; Wood v. Cable, 13 Allen, 58; Crocker v. Calvert, 8 Ind. 127; Schouler's Dom. Rel. 636; Smith on Mast. & Serv. 151, 152, 157; Southwick v. Estes, 7 Cush. 385.)

Nathaniel Foote for respondents. Kemitz, whose alleged negligence is claimed to have caused the injury in question,

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was not the servant of defendants in the business of discharging the rockets at the time the accident in question happened. ( Blake v. Ferris, 5 N.Y. 48; Olive v. W. M. Co., 103 id. 292; S. & R. on Neg. [4th ed.] § § 160, 161; Murphy v. Caralli, 3 H. & C. 461; Manning v. Adams, 32 Wkly. Rep. 430; Rourke v. W. M. C. Co., L. R. [ 2 C. P. Div.] 205.) There being no conflict in the evidence, the trial court properly determined, as a question of law, that Kemitz was acting, at the time of the accident in question, as the servant of Pierson or the citizens' committee, and not as the servant of defendants. ( Wilds v. H. R. R. R. Co., 24 N.Y. 430; Deyo v. N.Y. C. R. R. Co., 37 id. 9; Marion County v. Clark, 94 U.S. 278.)


The plaintiffs in this case having been nonsuited at the trial, the general inquiry upon this appeal is whether they were entitled to have the case submitted to the jury.

The plaintiffs are husband and wife and they sought to recover damages for an injury to the wife by the discharge of a rocket, while she was witnessing a display of fireworks at a Fourth of July celebration in Auburn, July 4, 1888.It is claimed that the defendants stood in such legal relations to the transaction as to become liable for the injury. They are partners in the business of manufacturing and selling fireworks at Rochester and they furnished the rocket that injured the plaintiff. The theory upon which the plaintiffs claim to recover is that the defendants contracted with a committee to give an exhibition or display of fireworks and in carrying out this contract the defendants, or their servants, so negligently handled or managed the fireworks, that the rocket was discharged horizontally into a crowd of people and struck Mrs. Wyllie, inflicting the injury complained of. The complaint is framed upon this theory alone and it is proper to say that the learned counsel for the plaintiffs, in his brief and in his oral argument in this court, boldly rests his whole case upon that principle. Neither by pleading, proof or argument has

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he suggested or claimed that there was any other ground for a recovery. The defendants deny that they ever made such a contract or that they ever gave, controlled or directed any such exhibition. The controversy is thus reduced to the inquiry as to what the defendants' legal relations were, upon the proofs given at the trial, to the transaction which was the cause of the injury.

This is to be ascertained from the testimony of the plaintiffs, for the defendants gave none, and there is no conflict or doubt with respect to the facts. Some time prior to May 1, 1888, a public meeting was held at Auburn, which was attended by the mayor and principal citizens, who resolved to have a celebration on July fourth, and a committee was then and there appointed to have general charge of it, consisting of thirty persons. Out of this general committee various subcommittees were formed and among them a committee of five on fireworks, of which George H. Battams was the chairman. He opened a correspondence with the defendants which must determine the legal nature of the transaction. His first letter is dated May first, in which he wrote to the defendants 'please send me your catalogue of your goods. I wish you would mark out a display for the Fourth of July that will cost $500.' The natural and obvious construction of this language is that the chairman of the committee asked defendants for a catalogue of their goods upon which should be indicated such articles as would be sold for $500. This letter does not appear to have been answered, and on May eighteenth, the chairman wrote again asking for the 'catalogue of your goods, with a display you can give for $500, also a display for $400.' Four days afterwards the defendants wrote to the chairman, in which they stated that: 'We inclose programme of exhibition which we have made up specially for you, and have taken pains to give you a very fine display * * * to cost $500 net. * * * If you do not wish to expend this amount, let us know, and we can reduce it to any amount desired by taking out some pieces. We make no charge for boxing or cartage, but expect you to return us the empty boxes and

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frames. We inclose printed sheet giving full instructions for firing the display.' It seems quite clear that this was nothing more than a proposition on the part of the defendants to sell and deliver certain goods specified, on what is called a programme, for $500. Nothing more was done till the twelfth of June, when the following letters were exchanged and which constitute the contract:

'AUBURN, June 12, 1888.


'DEAR SIRS--At last we have arrived at a conclusion in regard to the exhibition. I have been trying to get the whole thing, $500, but failed. At last we have decided to have a $400 display. Will you please inform me what you will give in that, including the steam engine and Mr. Wheeler's picture. We have had four others to buck against; three from New York and one from Syracuse. Mr. Scott had one from New York. There is considerable kicking, but we are there. Please give us a fine display. We would like to have a man to take charge of the display. Please inform me how many posts you will need. I have the model of post, the one we used last summer. of course, the $500 is a fine display, and I think you can give a fine $400 out of that.

'Hoping to hear from you soon, I rem. yours truly.


To which the defendants replied as follows:

'ROCHESTER, N.Y. June 14, 1888.

'GEO. H. BATTAMS, Esq., Auburn, N.Y. :

'DEAR SIR--Your favor of the 12 inst. at hand, with programme. 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 have included the steam fire engine and bust of Mr. Wheeler. You should have sixteen posts made like the model you...

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