McCarthy v. McCabe — 131 A.D. 396

Majority

p. 396

George McCarthy, Appellant, v. Dennis McCabe, Respondent.

Third Department,

March 10, 1909.

Headnote

Tort—master and servant — injury to third person — act of public officer — execution — exempt property.

In order to establish the liability of one person for an injury caused by the negligent or tortious act of another, it must he shown that the relation of master and servant existed Between the wrongdoer and the person sought to be ■ charged at the time andy in respect to the very transaction out of which the injury arose.

Where a constable, under an execution, levies upon and draws away potatoes "with teams and drivers hired from a third person, and it appears that the third person told the drivers that tie constable would tell them what to do and gave them no other instructions, and'^t further appears that the acts of the drivers were done while assisting the constable and under liis direction and for his benefit, there is evidence to justify ikjinding that the drivers were not the servants of the person from whom they were hired on the occasion so as to render him liable for their acts.

Process, regular on its face and issued by a court having jurisdiction, protects not only a ministerial officer for acts done under.it, but also those whom he calls to his assistance in the execution thereof.

Where the evidence of a judgment debtor, suing for the conversion of property claimed to he exempt, shows that he had about one. hundred and twenty-five bushels of potatoes, and that about seventy-five bushels were needed to feed himself and family for the year, and the evidence of defendant shows that about seventy-five bushels were left in plaintiff's possession after the levy, the jury is justified in finding that the potatoes removed iyere not “necessary,” under section 1390 of the Code of Civil Procedure. }

Appeal by the plaintiff,. George McCarthy, fro\n a judgment of the County Court of the county of Franklin, entered in the office of the clerk of said county on the 22d day of September^, 1908, affirming a judgment of a Justice’s Court in favor of the defendant.

John P. Kellas, for the appellant.

F. H. Byrant, for the respondent.

The action was brought to recover damages for the| alleged conversion of a quantity of potatoes taken by George' ^'/"ilson, a constable, under and by virtue of an execution issued agáinst the property of the plaintiff.- The evidence disclosed that th4 plaintiff was

p. 397

a householder having a family for which he provided; that on the 22d of November, 1907, he was the owner of about 125 bushels of potatoes which he had provided for family use, and that on that day the constable levied upon the potatoes and drew away about one-half of them with teams and drivers hired from the defendant. It was not shown that the defendant interfered with the property or did any acts in respect thereto except to transfer or loan his teams and drivers to the constable for the day in question.

He testified that he did not tell the drivers to get any of the plaintiff’s potatoes; that he told them that George Wilson would tell them what to do, and gave them no other instructions. It also appeared that all the acts of the drivers were done while assisting the constable in taking possession of the property under his levy, and that they acted under his direction and for his benefit and convenience.

The plaintiff claimed that the potatoes were exempt under section 1390 of the Code'of Civil Procedure, and sought to charge the defendant as a trespasser, upon the theory that he was responsible for the acts of the drivers in taking and removing the property whether they were working for him or the constable.

I think there was sufficient evidence to warrant the jury in finding that the defendant did not sustain the relation of master to the drivers so as to make him liable for their acts in assisting: the constable.

It has long been the settled law in this country as well as in England that a party is not responsible for the wrongful acts of another merely because the latter was at the time in his general employment; -that in order to establish the liability of. one person for an injury caused by the negligent or tortious act of another it must be shown that the relation of master and servant existed between the wrongdoer and the person sought to be charged for the result of the wrong at the time and in respect to the very transaction out of which the injury arose. (Milligan v. Wedge, 12 Ad. & El. 737; Quarman v. Burnett, 6 M. & W. 499; Wyllie v. Palmer, 137 N. Y. 248 ; Higgins v. W. U. Tel. Co., 156 id. 75.)

The decisions are uniform in the assertion that the test is, who conducted and supervised the particular work the doing of which, caused the injury or damage. In the Higgins case Judge O’Brien

p. 398

said: “ The fact that the party to whose wrongful or negligent act an injury may be traced was at the time in the general employment and pay of another person does not necessarily make the latter the master and responsible for his acts. The master is the person in whose business he is engaged at the time, and who has the right to control and direct his conduct. Servants w'ho are employed and paid by one person- may nevertheless be ad hoc the servants of another in a particular transaction, and that too when their general employer is interested in the "work.” And cited among other cases Rourke v. White Moss Colliery Co. (L. R. 2 C. P. Div. 205), when Lord Cookburn stated'the rule in these words': “But when one person lends his servant to another for a particular employment, the servant for anything done in that particular employment must be dealt' with as the servant of the man to whom he is lent, although he remains the general servant of the person who lent him.”

It seems to me clear that the evidence in this case justified a finding that the drivers of the teams were not the servants of the defend-' ant on this special occasion in any sense that would render him liable to the plaintiff for their acts. This fact, however, was not absolutely essential to 'the defense. The verdict and judgment can he sustained on the ground that there was not sufficient evidence to prove an exemption, for it is a familiar principle that process regular on its face issued by a court having jurisdiction not only protects a ministerial officer for acts done under it, but those whom he calls to his assistance in the execution thereof.

Section 1390 of the Code provides that “ All necessary meat, fish, flour, groceries and vegetables actually provided for family use ” are exempt from levy and sale. The word “ necessary,” as used in this provision, cpialifies the extent of the exemption. It is not all the meat, groceries- and vegetables provided for family use, but so much as a prudent man would ordinarily keep on hand for family use.

The plaintiff testified that at the time of the levy he had in his possession between one hundred and one hundred and twenty-five bushels in the pit and two or three bags of other potatoes, and that it took “ about seventy-five bushels of potatoes for one year for himself and family.” The evidence on the part of the defendant tended to show that twenty-seven sacks, each'holding between one and one-half and two bushels, and forty or fifty bushels, loose in the pit,

p. 399

were left in the possession of the plaintiff. It seems to me plain that under this evidence, the jury had the right to find, as they presumptively did, that the plaintiff had seventy-five bushels of potatoes left, or such an amount as would be necessary until the next annual period for storing such vegetables.

I am of opinion that their verdict upon this question of fact is controlling and that the judgment of the County Court should be affirmed, with costs.

Judgment unanimously affirmed, with costs.

Cases cited

Wyllie v. Palmer 137 N. Y. 248 N.Y. 1893-02-28 p. 397