Muller v. Hillenbrand

• Decision Date: 06 January 1920
• Citation: 227 N.Y. 448,125 N.E. 808
• Parties: MULLER v. HILLENBRAND. FINCK v. SAME.
• Court: New York Court of Appeals Court of Appeals

227 N.Y. 448

125 N.E. 808

MULLER

v.HILLENBRAND.

FINCK

v.SAME.

Court of Appeals of New York.

Jan. 6, 1920.

Actions by Mildred Muller, by Mary Finck, guardian ad litem, and by Mary Finck, against Francis Hillenbrand. From judgments for plaintiffs, modified and affirmed by the Appellate Division (179 App. Div. 831,167 N. Y. Supp. 259), defendant appeals.

Reversed.

Appeal from Supreme Court, Appellate Division, First department.

Stephen P. Anderton, of New York City, for appellant.

Henry Siegrist, of New York City, for respondent.

McLAUGHLIN, J.

The infant plaintiff throught this action to recover damages for personal injuries alleged to have been sustained by reason of an assault committed upon her by defendant's janitor. The other action is by the infant's mother to recover damages resulting from such injuries. Each plaintiff had a verdict upon which judgment was entered for a substantial amount, and which, in each case, was modified by the Appellate Division, and, as modified, affirmed. Defendant appeals to this court.

On the 9th of September, 1914, the defendant was the owner of two seven-story apartment houses in the city of New York, of which one Friedman was the janitor. His duties as such were those usually performed by a janitor, and included keeping the halls and sidewalks clean, washing the windows, and showing the apartments to prospective tenants. The infant plaintiff, at the time of the assault, was 11 years of age. No testimony was offered at the trial as to the actual authority conferred upon the janitor by the defendant, except that the janitor testified, on one occasion when he informed defendant that boys playing ball on the sidewalk had broken some windows, the defendant then instructed him that at any time thereafter, when he saw boys playing ball and breaking windows, to call a police officer on the beat.

The evidence adduced at the trial tended to establish, and justified the jury in finding, that the tenants had been annoyed by the noise caused by children roller skating on the sidewalk in front of the apartments and had complained to the janitor and his wife with reference thereto. Acting on such complaints, he had endeavored to prevent children from roller skating on the walks. On the day named the testimony on the part of the plaintiff, which is corroborated by two of her companions, shows that immediately prior to the assault, she and three girls about her own age had been roller skating on the sidewalk for some considerable time; that the janitor went upon the sidewalk, and, addressing the plaintiff, who was then standing on the walk with her roller skates on, told her to get off the walk; that she refused to do so; that he then told her if she did not get off he would throw her off, and her reply was, ‘I would like to see you;’ that he then grabbed her by the arm, threw or shoved her from the walk to the street, causing her to fall, and as she did so her back struck the curbstone and inflicted very serious injuries. Actions were thereafter brought against the owner of the apartment houses, with the result as above indicated.

The janitor, in assaulting the infant plaintiff, was not acting within the actual or apparent scope of his employment. Had the defendant been present he would have had no authority to do what the janitor did, and what he could not legally do he could not, in a legal sense,...