Reilly v. Connable

• Decision Date: 20 April 1915
• Citation: 214 N.Y. 586,108 N.E. 853
• Parties: REILLY v. CONNABLE.
• Court: New York Court of Appeals Court of Appeals

214 N.Y. 586

108 N.E. 853

REILLY

v.CONNABLE.

Court of Appeals of New York.

April 20, 1915.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Annie Reilly against Arthur W. Connable. From a judgment of the Appellate Division (156 App. Div. 920,141 N. Y. Supp. 1144) affirming a judgment for plaintiff, defendant appeals. Reversed and remanded.

E. Clyde Sherwood, of New York City, for appellant.

Arthur J. Levine, of New York City, for respondent.

COLLIN, J.

The action is to recover the damages for personal injuries to the plaintiff through a collision between an automobile owned by the defendant and a bicycle on which the plaintiff was riding. Inasmuch as the decision of the Appellate Division was not unanimous, we must ascertain by a scrutiny of the evidence whether or not there was any proof permitting the jury to return a verdict in favor of the plaintiff. If the verdict was unsupported in an essential particular by evidence, the submission of the case to the jury was error, reviewable under the exceptions of the defendant.

The automobile was being driven by the employé or chauffeur of the defendant. Conflicting evidence in regard to the negligence of the chauffeur and the contributory negligence of the plaintiff would have warranted the decision of the jury that the former was and the latter was not negligent. The negligence of the chauffeur did not, however, create liability on the part of the defendant, unless the chauffeur was acting in the course and within the scope of his employment. Was there any proof that he was so acting, is the question we are to determine.

The jury might have found, in a consideration of this question, as the facts most favorable to the plaintiff: The chauffeur was at the time of the accident, and had been for about three months last prior to the accident, in the general employ of the defendant, who lived in the country. He was paid a monthly salary and provided with a house upon the defendant's premises, fuel, and light, and such food supplies as were raised on those premises. All other supplies for his household he had to buy where he chose. His principal duties were caring for and operating the automobile, caring for the horses and cows, and doing errands appertaining to the defendant's home. They were not confined within fixed hours. About 4 o'clock in the afternoon of the day on which the accident happened, he arrived with the car, in which were the defendant and his wife, at the house of the defendant, and was told by the defendant, after he and his wife had alighted, that he was through with him, but would need him at 9 o'clock that evening to meet some friends at the train. He took the automobile to the garage, about 500 feet from the house, intending to and was about to drive it in, when his wife came from his home adjacent to the garage and told him to get some meat for their dinner. He thereupon started for the market, 1 1/2 miles distant, by turning the automobile around and driving back through defendant's yard to the street, upon which, while he was on his way to the market to get the meat for the dinner of himself and his wife, the collision occurred. He sometimes, prior to the accident, had bought articles for himself while he was driving the automobile with the defendant and his wife in it. He frequently had used the automobile in procuring supplies and doing errands for himself, but without asking for or receiving the express consent of or any orders in that regard from the defendant, who had not forbidden such use. The defendant did not know that he was going to the market. The question is: Was it permissible for the jury to say, under those facts, that it was the defendant's business to go to the market to get the meat for the dinner of his chauffeur and his wife, and was the chauffeur employed to do that business for him? The defendant was not negligent, unless the going to the market was his act negligently done by him through the chauffeur as his agent or servant. The liability of an employer for the negligence of his employé proceeds from the maxim, ‘qui facit per alium facit per se.’ Engel v. Eureka Club, 137 N. Y. 100, 32 N. E. 1052,33 Am. St. Rep. 692;Clark v. Fry, 8 Ohio St. 358,72 Am. Dec. 590;Farwell v. Boston & W. R. R. Co., 4 Metc. (Mass .) 49, 38 Am. Dec. 339. The fact that the automobile was the defendant's did not make him liable. If the chauffeur was doing the defendant's business which he was employed to do, the defendant would have been equally liable had the chauffeur, while walking or running or riding a bicycle, negligenty have collided with the plaintiff, to her injury. The fact that the chauffeur caused the injuries during the period of his employment does not make the defendant liable. If the employé in doing any act breaks the connection between himself and his employer, the act done under those circumstances is not that of the employer. Nor would the defendant's permission or acquiescence in the use by his chauffeur for the personal business or pleasure of the chauffeur make the defendant liable. The permission of defendant to the chauffeur to use the automobile for purposes personal to the chauffeur, and in which the defendant had no interest, did not make him liable to the plaintiff. We hold that the act of the chauffeur in going to the market for the meat was not for the defendant or within the scope of the employment of the chauffeur, and the defendant is not liable for his negligence. This opinion is supported by the reasoning and conclusions of the following decisions:

In Steffen, as Adm'r, v. McNaughton, 142 Wis. 49, 124 N. W. 1016,26 L. R. A. (N. S.) 382,19 Ann. Cas. 1227, the plaintiff's intestate was struck and killed by an automobile owned by the defendant and operated by his chauffeur, who was alone in the car and was going to his home, one mile distant from defendant's residence, for dinner. The chauffeur was a regular employé and had full charge of the car under the direction of the defendant and his family. He had used the automobile many times to go to his dinners. He had not been directed or forbidden by his employer to use the car for such purpose and had no express permission to use it. The trial court directed a verdict for the defendant. The Supreme Court affirmed this verdict, and in the course of its opinion said:

‘This contention [that the defendant was liable] is made on the grounds that the chauffeur used this machine to further his master's interests; that he thereby reduced the time for getting his meals and thus was able to devote more time to the service of the defendant; that the defendant gave him the control of the machine for the day without restriction, thereby enabling him to use it for this purpose; and that these and all the other conditions of his employment and service make the use of the machine on these occasions one within the privileges of his service for facilitating his labor and service, thus bringing it within the scope and course of his employment. We are of opinion that the facts of the case do not permit of this inference. The conditions of the contract of employment, under which the chauffeur was to provide himself with meals, carried with it the eurther condition that he was to have the required time at noonday, and might leave the service for such a period of time as was required under the circumstances for this personal and private purpose. While he was so engaged, his employment and the relation of master and servant were suspended for the time being, unless the facts of the case show that the defendant consented to the chauffeur availing himself of this use of the machine to facilitate his labor and service and in furtherance of the defendant's interests. The evidence will not support this inference. It is reasonably clear and certain that the defendant by his words, acts, and conduct...