Opinion
April Term, 1897.
Taylor Nicholls, for the appellants.
P.F. King, for the respondents.
The learned trial justice charged the jury that in addition to proving damage and the negligence of defendants' servant in causing same, "The plaintiff must establish more than those facts in order to justify you in reaching a conclusion adverse to that of the defendants. It must appear that the servant was acting under the instructions of the defendants, or that he was acting independent of any direction previously given, but that the acts of the servant became known to the defendants and were approved during the time that he was engaged in the service and before he attempted to return the truck to the American Express Company's office."
To this the plaintiffs' counsel excepted, and in that connection asked the court to charge "that all those elements were not necessary; that if he was given general instructions to remove those goods by the defendants and borrowed this truck for the benefit and in the furtherance of the labor and in the business of the defendants, that then the plaintiffs can recover." By the Court: "I charge he cannot, and give you the exception; there is no such emergency authorizing the witness to depart from the instructions."
We are of the opinion that there was prejudicial error in the portions of the charge excepted to. The plaintiffs were entitled to have the jury instructed that if the plaintiffs were damaged by the negligent act of the servant while he was acting within the general scope of his employment, and if the motive which prompted the act and the purpose sought by it were within the scope of his employment and in the business of defendants, and not independent or outside of his employment, or disconnected with the masters' business, the plaintiffs were entitled to a verdict. ( Wellman v. Miner, 19 Misc. Rep. 644, and cases cited; Burns v. Poulsom, L.R. [8 C.P.] 563; Atchison, etc., R.R. Co. v. Randall, 40 Kans. 421; Walker v. Johnson, 28 Minn. 147; Pittsburgh, etc., R.R. Co. v. Kirk, 52 Am. Rep. 675; S.C., 102 Ind. 399; Whart. on Neg. [2d ed.] 167.)
If the jury should find, upon all the evidence, that the act of the servant was no part of his business, nor within the scope of his employment, nor for the benefit of defendants, nor in furtherance of their interest, then they are not liable. If the servant, in borrowing and returning the truck, was carrying out a separate and independent purpose and motive of his own, and in doing so ceased to be an actor within the scope of his employment and within the range of his master's business, then the defendants are not liable. "The test of the master's responsibility for the act of his servant is not whether such act was done according to the instructions of the master to the servant, but whether it is done in the prosecution of the business that the servant was employed by the master to do." ( Cosgrove v. Ogden et al., 49 N.Y. 255.)
We are of the opinion that the portion of the charge excepted to by the plaintiffs was erroneous, in that the jury was instructed that, before the defendants could be held liable for the negligent acts of their servant, those acts must have become known to the defendants and been approved by them during the time he was engaged in the service, and before he attempted to return the truck to the American Express Company's office.
The judgment should be reversed and a new trial ordered, with costs to abide the event of the action.
All concurred.
Judgment and order reversed and a new trial ordered, with costs to abide the event.