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This action was brought to recover compensation for injuries to the plaintiff's person and property occasioned by the alleged negligence of the defendant.

It is found, that the defendant, Jonathan Powers was the owner of two horses, and the defendant, Abner, who was his son and hired man, drove them as he had occasion for private driving without special permission of his father. On the 19th day of May, 1879, Abner, who was expecting a friend to make him a visit at his father's home, took one of said horses and an open wagon, without the permission of his father, and drove them to the depot at West Burke, to meet his friend. His father did not know he had gone until he had been absent some time, but expected and was willing he should take the team to bring his friend from the depot when he should need it for that purpose. Abner arrived at the depot more than an hour before the arrival of the train, and hitched the horse in as secure a place as there was around the depot, and at the usual place for the defendants to hitch. The horse was restless and pulling upon his halter, which was noticed once at least by Abner. He finally broke loose and ran into the team of the plaintiff, thereby causing injuries to him, which are sought to be recovered for.

The horse broke away in consequence of a defect in the rope with which he was tied. The defect consisted in the knot, in the end of the rope being too near the end of it, so that it worked out and was untied by the continual pulling of the horse. In all other respects it was suitable and sufficient and it is found that Abner did not exercise the prudence of an average prudent man in using the rope with said defectively tied knot in the end, or in other words, in not seeing that the knot was suitably and properly tied.

It is clear that the defendant Abner is liable, for it is found that the damage to the plaintiff resulted from his negligence in using a defective rope in tying the horse.

Abner was not at the time in the employment of his master, nor acting upon his business. He took the horse, as we have een, without the permission or knowledge of Jonathan Powers, and no license to take him could be inferred from the fact that he had used him upon his own business upon previous occasions, without leave. Abner was not entrusted by his master with the horse and carriage; and so his master was not brought within the

rule of liability that has been held to apply in the cases to which we have been referred by the counsel for the plaintiff. If Jonathan Powers should be held liable, upon the facts found, it would in legal effect, be holding him responsible for the damage resulting from the use of a defective article owned by him, when the use was without his permission and knowledge.

The judgment is affirmed.

CAVANAGH v. DINSMORE.

19 N. Y. Sup. 465. 1878.

Appeal from a judgment entered upon a dismissal of the complaint at the New York Circuit.

DAVIS, P. J. The plaintiff's intestate, while attempting to cross Chatham Street was run over and killed by a team and truck of the Adams Express Company, then in charge of one of their drivers. The evidence was sufficient to show that the injury and death were occasioned by the negligence of the driver. Upon examination of the driver, who was called as a witness for the plaintiff, it appeared that on the evening when the injury and death occurred, he had delivered at the branch office of the Company, at No. 638 Broadway, between Houston and Bleecker Streets, a load of merchandise, and had then been instructed to proceed with the horses and truck to the stables, of the Company on Church Street, and there put up the truck and horses; that on arriving at the corner of Broadway and Canal Street he was met by another driver of the defendant, with whom he had made an arrangement to that effect during the day, and thence drove eastwardly to Henry Street, distant about one mile from the corner of Canal Street and Broadway as a personal favor to his fellow-servant, and took away from there a trunk and valise belonging to his fellow-servant to carry to Fulton Street. That while driving through Chatham Street toward Broadway, the injury to the deceased was occasioned. It was proved, also, that neither of the drivers had asked permission of any of their superior officers to make use of the truck and horses for the purpose of removing such trunk and valise.

Upon proving this state of facts the plaintiff rested, and the defendant moved that the complaint be dismissed on the ground

that at the time of the injury the defendant's driver was not engaged in the service of the company, but was doing a favor to a fellow servant. The plaintiff asked the court to submit several questions to the jury, which request was refused. The plaintiff excepted severally to the refusals. The court dismissed the complaint. There was no disputed question of fact in this case. The several requests of the plaintiff were based upon the idea that the jury, from the undisputed facts of the case above stated would be at liberty to reach legal conclusions different from those which rightly attach to the facts, or to imply therefrom other facts touching which no proof was given.

We think the court was right in declining to allow the case to go to the jury upon any of the questions suggested by the learned counsel for the plaintiff.

The departure of the driver from the ordinary route to the stables for the purpose of doing a favor to his co-servant, as stated in the evidence, was clearly an unauthorized deviation, and not within the scope of his duty. He cannot be said, within the authorities, to have been acting in the service of the defendant, while engaged in going for the trunk and valise of his co-servant, and in taking them to their destination. The act was not only without the authority, but without the knowledge or consent of the defendant, or of any superior officer of the driver. It is well settled that the master is not liable for injuries sustained by the negligence of his servant while engaged in an unauthorized act beyond the scope and duty of his employment, for his own or another's purposes, although the servant is using the implements or property of the master in such unauthorized act.

It is not necessary to do more than to cite some of the elementary books and leading authorities on this subject. (Higgins v. Watervliet Turnpike Co., 46 N. Y. 23; Isaacs v. Third Ave. R. R., 47 id. 122; Rounds v. Del. Lac. and W. R. R., 64 id. 129; Sheridan v. Charlick, 4 Daly, 338; Wright v. Wilcox, 19 Wend. 343; Frazer v. Freeman, 43 N. Y. 566; Sherman & Red. On Negligence, 69 § 63; 1 Parsons on Contracts, 87; Story v. Ashton, L. R. 4 Q. E. 476; Cosgrove v. Ogden, 49 N. Y. 257.).

The judgment should be affirmed.

BRADY and DANIELS, J.J., concurred.

Judgment affirmed.

STONE v. HILLS.

45 Conn. 44. 1877.

Trespass on the case, for an injury by reason of the negligence of the defendants' servant; brought before a justice of the peace, and appealed by the defendants to the Court of Common Pleas of Hartford County, and there tried to the court on the general issue, before McManus, J. The court made the following finding of facts:

On the first day of March, 1876, the defendants were operators of a paper-mill in the town of Glastonbury, and had in their employment one Smith, as a driver of their team. On that day they directed him to carry a load of paper from the mill and deliver it to one Taylor at a point in the same town four and a half miles distant, and to return from thence by way of Nipsic with a load of wood. On reaching Taylor's the latter requested Smith to deliver the paper at the warehouse of Tracy & Co. in the city of Hartford, four and a half miles distant from Taylor's, and to go from thence to a railway freight station in the city and get some freight belonging to Taylor and transport the same to his place. Smith acceded to Taylor's request, and while in the railroad station paying Taylor's freight bill, the horses, which he had negligently left unhitched and unattended, being frightened by a passing train, ran up the street, and against the plaintiff's wagon, and injured it to the extent of $18.42, besides making it necessary for him to expend $6 in addition for the use of another

wagon.

The court, upon these facts, rendered judgment to the plaintiff and the defendants brought the case before this court by a motion in error.

PARDEE, J. The rule is that for all acts done by a servant in obedience to the express orders or directions of the master, or in the execution of the master's business, within the scope of his employment, and for acts in any sense warranted by the express or implied authority conferred on him, considering the nature of the services required, the instructions given, and the circumstances under which the act was done, the master is responsible; for acts which are not within these conditions, the servant alone

is responsible. We cite a few from the many cases in which this rule has been judicially illustrated and applied.

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In the case before us, the servant left the employer's premises under precise instructions as to the place to which their team was to be driven, and as to the merchandise to be transported; and under instructions, equally precise, as to the route to be taken in returning, and as to what he should bring home. These, therefore, covered the entire period of his contemplated absence; nothing was left to his option or discretion; nothing to change; and in fact the deviation was not occasioned or even suggested by any unforeseen event in connection with the employer's business; the record shows no obligations, express or implied upon them to deliver the paper than in North Glastonbury, nor that the journey thence to Hartford even if successfully accomplished would have been to their advantage or profit; it was not connected with, did not grow out of, did not contribute to, the successful completion of their business. When therefore, the servant accepted instructions from Taylor, and became a carrier of merchandise for him to and from a railroad station in an adjoining town, he temporarily threw off employer's authority, abandoned their business, and left their service. They are not responsible for his negligence on this occasion. There is error on the judgment complained of.

In this opinion the other Judges concurred; except Loomis, J., who did not sit.

POULTON v. L. & S. W. RAILWAY CO.

2 L. R. Q. B. 534. 1867.

SYLLABUS.

The plaintiff, having taken a horse to an agricultural show, by the defendant's railway, was entitled under arrangements advertised by the defendant to take the horse back free of charge on the production of the certificate. The plaintiff, accordingly, produced the certificate, and the horse was put into a box without payment or booking, and the plaintiff having taken a ticket for

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