O'Brien v. Stern Bros.

• Decision Date: 23 April 1918
• Citation: 119 N.E. 550,223 N.Y. 290
• Parties: O'BRIEN v. STERN BROS.
• Court: New York Court of Appeals Court of Appeals

223 N.Y. 290

119 N.E. 550

O'BRIEN

v.STERN BROS.

Court of Appeals of New York.

April 23, 1918.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Frank O'Brien, as administrator of the estate of Thomas O'Brien, deceased, against Stern Bros. From a judgment of the Appellate Division, Second Department (176 App. Div. 937,162 N. Y. Supp. 1133), affirming a judgment of the Trial Term, entered upon a verdict for plaintiff, from which affirmance one justice dissented, the defendant appeals. Reversed, and complaint dismissed.

B. L. Pettigrew and Walter L. Glenney, both of New York City, for appellant.

John J. Crennan, of New Rochelle, for respondent.

CRANE, J.

As the affirmance in this case was by a divided court, we are obliged to determine whether there was any evidence upon which to base the recovery for the plaintiff.

[1][2] The only point presented is whether at the time of the accident the chauffeur in charge of the defendant's automobile was acting within the scope of his employment. The law of the case has been fully and completely stated in Reilly v. Connable, 214 N. Y. 586, 108 N. E. 853, L. R. A. 1916A, 954, Ann. Cas. 1916A, 656. There the servant was using the master's automobile in procuring supplies for himself and household, and the court said:

‘The fact that the automobile was the defendant's did not make him liable. * * * 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. * * * 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.’ 214 N. Y. 590, 108 N. E. 854 (L. R. A. 1916A, 954, Ann. Cas. 1916A, 656).

Applying this rule to the facts in this case most favorable to the plaintiff, we fail to discover any ground for the defendant's liability.

On August 19, 1913, one Thomas O'Brien was acting as watchman in the employ of the town of Mamaroneck at an excavation on the Boston post road between New Rochelle and Larchmont. About 7 o'clock on the evening of that day he was run over and killed by the defendant's automobile delivery wagon going from New Rochelle toward Mamaroneck in charge of its chauffeur. The negligence of the chauffeur was proved by an abundance of evidence. At the time, however, he was not acting for the defendant or doing its work, but driving a friend, Philip F. Havey, to the wagon shop of one Tierney on the Boston post road. Havey was a restaurant keeper in Mt. Vernon, at whose place Mackin, the chauffeur, had had supper that night. The defendant, Stern Bros., maintained a delivery route, taking in Mt. Vernon, Pelham, Pelham Manor, and New Rochelle, and this route was covered by Mackin. On the night in question he had made all his deliveries with the exception of one package for a Mrs. Mellen of 217...