Simons v. Monier

Johnson, J.

The defendant’s counsel requested the judge to charge the jury that J ohn Terry was not the servant of the defendant, but of Seth Terry, and that the "defendant was in no way responsible for his acts. The judge refused so to charge, and charged in substance that the act of John Terry, in setting the fire, was the act of Seth Terry, and that, if it was negligent to set the fire at the time, and under the circumstances described by the witnesses, then the plaintiff was entitled to recover. Seth Terry was the defendant’s hired servant, and worked on the farm on which the fire was set, by the month. John Terry was the son of Seth, but was not in the defendant’s employ; and so far as the evidence shows, there was no legal relation whatever between John and the defendant. The setting of the fire, which the jury have found was a negligent act, was done by J ohn at the time, by the express direction of his father. Upon this state of facts the judge, I think, was clearly right in instructing the jury that the act of setting the fire was the act of the father. It was, his immediate personal act; for although it was done by the hand of the son, the hand was directed, guided and controlled by the mind and will of the father. It was the father’s will and volition exclusively. It was his carelessness, and not the carelessness of the son. It was precisely as much the act of the father as though he had used some other means or instrument in conveying the fire and kindling the flame. This being so, the defendant was clearly liable, if the setting of the fire was within the scope of the employment of Seth Terry as a hired<.servant upon the farm. Of this, it seems to me, upon the undisputed facts, there can be no doubt. He had been directed by the defendant to summer fallow the piece of ground where the fire was set. In order to prepare the ground for the plow, it became necessary to cut and remove the brush *423 growing upon it. , This preparation was an essential part of what he was required to do. It was clearly a necessary incident, and must be held to have been embraced in the general directions. It was the careless manner in which he undertook to remove the brush so cut, in respect to time and circumstances, which constitutes the alleged cause of action. It is claimed by the defendant’s counsel that this question, as to whether the removal of the brush was within the scope of the employment of the servant, should have been submitted to the jury as a question of fact to be found by them. But I think it was clearly a question of law upon the undisputed facts, as to which there was no conflict of evidence, and the judge might properly have charged directly, what seems to have been assumed, that the cutting and removal of the brush was a part of the work of summer fallowing the land, and was within the scope of the employment.

It is objected that the jury were charged that the defendant would be liable, if the act was negligent, whether the act was within the scope of the servant’s employment or not, as it was done by a person who worked on the premises. The charge in its commencement would seem to bear such a construction, and to lay down as a rule of law the doctrine first asserted by Rooke, J., in Bush v. Steinman, (1 Bos. & Pull. 404,) “ that a man who has work going on upon his premises and for his own benefit, must be civilly answerable for those whom he employs; that it shall be intended by the court that he has control over those who work upon his premises, and he shall not be allowed to discharge himself from that intendment of law by any act or contract of his own.” This doctrine, which strikes at the very foundation of the rule which makes the master liable only for the negligent act of the servant while engaged in the business he was employed to transact, has frequently been repeated in other cases since, by judges both in England and in this state; but no case which turned upon that question has, I think, been decided in England or here. It was, however, for a time, assumed by judges *424 to be the law, and a distinction was attempted to be founded upon it'between persons engaged in working for another upon real estate, and those entrusted with the care and management of personal property. The existence of such a distinction was assumed by the chancellor in The Mayor &c. of New York v. Bailey, ( 2 Denio, 433 ,) and by Harris, justice, in Gardner v. Heartt, ( 2 Barb. 165 ,) though in neither case was it necessary to sustain the decision made. But it has since been expressly held that such a distinction, which never had any foundation whatever in reason, has none in law, and that the doctrine was never law, either in England or in this state. (Reedie v. Railway Co. 4 Wels. Hurlst. & Gord. 244. Hobbet v. Same, Id. 254 . Blake v. Ferris, 1 Seld. 48, and cases cited in opinion of Mullett, J.) These decisions establish the rule of liability against the master for the act of the servant to be the same precisely, whether the servant is employed in the care and management of real or personal property, except perhaps in the single instance where the act complained of, in respect to real estate, amounts to a nuisance. To this extent, therefore, the charge was erroneous. But it could, by no possibility, have prejudiced the defendant, because, as we have seen, as matter of law, the servant in setting the fire, was engaged in the business he was directed to pursue. It was a mere abstract proposition of law, which had no bearing upon the case made by the evidence, and as no one could have been prejudiced by it, no exception will lie upon it. There is, therefore, no error in the charge for which a new trial should be granted. The case would, as I conceive, have stood entirely different had the son been employed by the father to do the work generally, which it was the duty of the father, as the defendant's servant, to perform, and had he, while so employed, of his own volition, and without the knowledge or direction of the father, set the fire in question. The son, under such circumstances, being the servant of the father, and not of the defendant, his act would have been chargeable upon the father as master, and not upon the defendant. The neg *425 ligent act in that case would have been the act and negligence of the son, and in no sense that of the father, except by mere legal relation; and as the defendant never selected him, nor authorized any one to do so in his behalf, and never entrusted any business to his management and discretion, there could be no ground on which to charge the defendant with his negligent acts. The legal relation upon which the master’s liability rests would in such case be entirely wanting. , The master’s liability does not extend to the negligent acts of his servant’s agent or servant, unless the servant of such master has directed the particular act, or is so connected with it as to make the negligence his own, in fact as well as in law.

There is one ground, however, on which a new trial must unavoidably be granted. The plaintiff’s counsel upon the trial asked a witness, from what he saw, how much damage the fire did to the farm. This was objected to, on the part of the defendant, on the ground that it was incompetent, as calling for an opinion from a witness on a question of damages which belonged to the jury to determine after hearing all the facts. The objection was overruled, and the defendant’s counsel excepted. The witness thereupon gave his opinion that the farm had been damaged- to the amount of $5 per acre. This was clearly erroneous. It was putting the witness directly in the place of the jury. (Morehouse v. Mathews, 2 Comst. 514. Paige v. Hazard, 5 Hill, 603 . Dunham v. Simmons, 3 id. 609 . Fish v. Dodge, 4 Denio, 311 .) The order at special term refusing a new trial, must therefore be reversed, and a new trial granted, with costs to abide the event.

T. R. Steong, J., concurred.