Grant v. Knepper

• Decision Date: 03 May 1927
• Citation: 245 N.Y. 158,156 N.E. 650
• Parties: GRANT v. KNEPPER.
• Court: New York Court of Appeals Court of Appeals

245 N.Y. 158

156 N.E. 650

GRANT

v.KNEPPER.

Court of Appeals of New York.

May 3, 1927.

Action by John J. Grant against Frank Knepper. From a judgment of the Appellate Division (218 App. Div. 784, 218 N. Y. S. 765), affirming a judgment on a verdict of a jury for plaintiff, defendant by permission appeals.

Affirmed.

Appeal from Supreme Court, Appellate Division, Second Department.

H. H. Brown and E. C. Sherwood, both of New York City, for appellant.

Joseph A. Corbalis, of Yonkers, for respondent.

CARDOZO, C. J.

[1] Defendant sent out his motor truck with a driver and a salesman to deliver merchandise. On the way back the salesman asked to be allowed to run the car, though he was without an operator's license. Permission being granted, he slipped into the seat behind the wheel while the driver stood upon the running board beside. After going about a mile and a half, the salesman ran the truck into a car which had been parked along the roadway. The truck, after striking and damaging the car, went on about 40 feet till it collided with a telephone pole, which it threw to the ground. The owner of the car sues the owner of the truck.

[2] 1. We think a case was made for submission to the jury, though liability were to be tested by the rule at common law. The driver was negligent, or so the triers of the facts might find, when he placed at the wheel a substitute without skill or experience in the management of cars. The substitute did not even have such presumptive evidence of competence as may be supplied by an operator's license (Pigeon v. Massachusetts Northeastern St. R. Co., 230 Mass. 392, 395, 119 N. E. 762;Bourne v. Whitman, 209 Mass. 155, 171, 95 N. E. 404), and his lack of skill is apparent in the very nature of the accident. The driver was negligent again, or so the triers of the facts might find, in failing to superviseor control the conduct of his substitute, who ran the car at a rate of speed presumptively excessive in the operation of a truck (Highway Law; Cons. Laws, c. 25, §§ 287, 288; cf. Yonkers Code of Ordinances, art. 4, § 67, as amended by General Ordinance No. 4 of Oct. 15, 1916). We do not ignore the fact that the substitution was itself unauthorized, and so a wrong to the employer. Even so, the employer was not relieved of liability for any negligence assignable to the driver, his authorized representative, who still remained upon the truck with general power and authority of supervision and control. Cf. Lloyd v. Grace, Smith & Co., 1912 A. C. 716, quoting Barwick v. English Joint Stock Bank, L. R. 2 Ex. 259. If the driver had left the seat and let the car proceed without any one at the wheel, the defendant would have been liable for any damage caused thereby. He is not less liable when the driver places at the wheel an incompetent substitute (Pollock on Tors, p. 87), or fails to intervene thereafter with protest or command when protest or command would be timely to avert the loss (Dowler v. Johnson, 225 N. Y. 39, 121 N. E. 487, 3 A. L. R. 146). ‘Co-operation may be inferred from acquiescence where there is power to restrain.’ Dowler v. Johnson, supra. The duty rests upon the servant with continuing obligation to ‘keep control and exclude incompetent meddling’ (Pollock, supra) while he remains upon the car.

Two cases in the English Court of Appeal state the applicable principle with clearness and precision. In one (Engelhart v. Farrant & Co., 1897, 1 Q. B. 240), a delivery wagon was sent out with a men and a boy. The man's duty was to drive; the boy's duty was to deliver parcels. The boy had nothing to do with the horses. The man's instructions were not to leave the cart. The driver did in fact leave the cart, and while he was absent the lad drove on and came into collision with the plaintiff's carriage and injured it. The court held that the negligence of the driver in leaving the cart in the custody of the boy might be found to be the effective cause of the collision and the damage. ‘If a stranger interferes,’ said Lord Esher, M. R., ‘it does not follow that the defendant is liable; but equally it does not follow that, because a stranger interferes, the defendant is not liable if the negligence of a servant of his is an effective cause of the accident.’ In the other and later case, this ruling was approved and followed. Ricketts v. Tilling, 1915, 1 K. B. 644. The driver of a motor omnibus, sitting on the box, gave the wheel to the conductor who was not authorized to drive. The conductor being inexperienced and incompetent, the omnibus mounted the pavement and injured passersby. The court held that there was ‘a question’ of fact ‘whether the effective cause of the accident was that the driver committed a breach of his duty (which was either to prevent another person from driving, or, if he allowed him to drive, to see that he drove properly), or whether the driver had discharged that duty.’ Cf. Pollock on Torts, pp. 46, 93, 492. In brief, the basis of liability is always the negligence of the servant. If such negligence exists, and is found to be an effective cause, it does not lose its significance as a basis of liability because it may be found to have combined with the negligence of the substitute.

Cases may indeed be found where the master has been subjected to a liability even broader. Geiss v. Taxicab Co., 120 Minn. 368, 139 N. W. 611 ,45 L. R. A. (N. S.) 382;Kayser v. Van Nest, 125 Minn. 277,146 N. E. 1091,51 L. R. A. (N. S.) 970;Bamberg v. Int. R. Co., 53 Misc. Rep. 403, 103 N. Y. S. 297;Hill v. Sheehan (Super. Buff.) 20 N. Y. S. 529;James v. Muehlbach, 34 Mo. App. 512;Ulman v. Lindeman, 44 N. D. 36, 176 N. W. 25, 10 A. L. R. 1440; 44 A. L. R. p. 1385, note, and cases there cited. There are holdings or at least dicta to the effect that, if the servant is present, the act of his substitute will be taken as his own, though there was neither negligence in the selection of one inexperienced or incompetent, nor failure of supervision in circumstances where supervision could be found to be effective. We are not prepared to go so far if liability is to be measured by the rule at common law. Cf. Mechem on Agency, vol. 2, § 1867; Mechem, Master's Liability for Stranger's Negligence, 3 Mich. L. Rev. 198, 216; Labatt, Master & Servant, vol. 7, p. 7732 et seq. In saying this, we exclude situations of emergency or danger. Mechem, Agency, vol. 1, § 321; Hollidge v. Duncan, 199 Mass. 121, 85 N. E. 186,17 L. R. A. (N. S.) 992. There may be need, too, of other exceptions by force of some special relation, as that of carrier and passenger. Leavenworth Electric R. Co. v. Cusick, 60 Kan. 590, 597, 57 P. 519,72 Am. St. Rep. 374. The selection of any substitute is a wrong to the employer where delegation is unauthorized, but it is not negligence toward the public if the substitute is competent, perhaps more competent than the servant, and there is no failure thereafter of fitting supervision. Most of the cases upholding a broader liability go back to Althorf v. Wolfe, 22 N. Y. 355, where a servant employed to shovel snow and ice from a roof brought an assistant to help him, who injured some one on the street. One of the two opinions lays stress upon the fact that there was no limitation upon the authority of the servant to provide such help as he might choose. Page 361. Here the character of the service imports trust in the servant and a consequent restriction upon the employment of a substitute. The other of the two opinions fairly sustains the inference, when we read it in connection with the preliminary statement of the facts, that the substitute was negligently casting snow upon the street with the servant standing by and approving of the act. Cf. Haluptzak v. Great Northern Ry. Co., 55 Minn. 446, 57 N. W. 144,26 L. R. A. 739. If the act was so directed, the substitute was ‘a mere instrument or agent-a longer arm which the servant or agent wields or controls.’ Mechem, 3 Mich. L. Rev. p. 216; Ulman v. Lindeman, supra, at page 41 (176 N. W. 25);Simons v. Monier, 29 Barb. 419. Althorf v. Wolfe is thus consistent...