Kennedy v. White

The complaint was dismissed upon the trial after the plaintiff had completed her opening to the jury. Before addressing that body, her attorney stated to the court that with its permission, and by the consent of counsel, he would present a full statement of facts as he understood the witnesses would testify, to the end that he might invite a motion to dismiss, and to have the question of law whether the facts constituted a cause of action determined at the outset. This course was pursued, and resulted in the dismissal of the

The record therefore presents legal questions in the same phase as. if the plaintiff had been nonsuited, or as if a verdict had been directed against her at the close of all the evidence. Unless the opening shows such facts as preclude the possibility of recovery, or some other fact fatal to the plaintiff’s right of action, or where the pleadings present no cause of action, the dismissal is erroneous. Every material issue must be resolved in plaintiff’s favor. Hoffman House v. Foote, 172 N. Y. 348 , 65 N. E. 169 ; Montgomery v. Boyd, 78 App. Div. 64 , 79 N. Y. Supp. 879 . The facts stated by the plaintiff were, briefly, these: The defendant was the owner of tenement houses at the corner of Hicks and Warren streets, in the borough of Brooklyn. For a number of years prior to the day of the occurrence of the facts which give rise to the action a man named Voltz had been around the premises either as watchman or janitor, or at least had been seen from time to time removing ashes from the premises, sweeping out the place, sweeping the sidewalk, and “from time to time Voltz drove away unruly and noisy boys who had congregated in front of the flats in that neighborhood.” On the day in question Voltz was on the premises, when the plaintiff’s son, Arthur Kennedy, coming from his home, was walking by on the sidewalk across the street from the flats, when the former noticed a number of boys who were “running on the same side of the street as the flats, down in front of the flats, laughing, shouting, and making quite a noise.” The boys in that neighborhood are somewhat unruly and noisy. While plaintiff’s son was standing there, Voltz came running out of the doorway of the premises with a stick of wood in his hand, when the crowd of boys, who were on the same side of the street as the flats, cleared off, and went back to the corner from which they came. The plaintiff’s son was directly across the street from where Voltz came out. When the latter emerged from his premises upon the sidewalk, he looked after the running boys, then “looked off where plaintiff’s boy was, and then threw this stick he had and struck the boy upon the arm,” inflicting injuries upon him. The plaintiff has lost the services of her son. Between the outer wall of defendant’s flats and the place where the boy stood when he was injured were the sidewalk in front of the premises and the whole width of the highway.

This state of facts required a dismissal of the complaint. The principles of law applicable to the case have been settled by a long line of carefully and well considered decisions. The difficulty consists'in their proper application. We had occasion to review the most important of these in the decision of Collins v. Butler, 83 App. Div. 12 , 81 N. Y. Supp. 1074 , where it was held as matter of law that the owner of a store was liable for the act of his clerk in perpetrating an unprovoked, wanton assault upon a customer. Mali v. Lord, 39 N. Y. 381 , 100 Am. Dec. 448 ; Dupre v. Childs, 52 App. Div. 306 , 65 N. Y. Supp. 179 , affirmed on opinion below 169 N. Y. 585 , 62 N. E. 1095 ; Rounds v. D., Lack. & W. R. R. Co., 64 N. Y. 129 , 21 Am. Rep. 597 ; Cohen v. D. D., E. B. & V. R. R. Co., 69 N. Y. 170 ; Mott v. Consumers’ Ice Co., 73 N. Y. 543 ; Ochsenbein v. Shapley, 85 N. Y. 214 ; Fogarty v. Wanamaker, 60 App. Div. 433 , 69 N. Y. Supp. 883 ; Burns v. Glens Falls R. R. Co., 4 App. Div. 426 , 38 N. Y. Supp. 856 ; Higgins v.

“For the acts of a servant, within the general scope of his employment, while engaged in his master’s business, and done with a view to the furtherance of that business and the master’s interest, the master will be responsible, whether the act be done negligently, wantonly, or even willfully. But if a servant goes outside of his employment, and without regard to his service, acting maliciously, or in order to effect some purpose of his own, wantonly commits a trespass, or causes damage to another, the master is not responsible.” Girvin v. N. Y. C. & H. R. R. R. Co., supra; Mott v. Consumers’ Ice Co., supra.

The facts upon which the Court of Appeals decided the Girvin Case were substantially that the plaintiff, a lad of 14 years, was engaged with others in a trespass upon the defendant’s freight train, for the purpose of unlawfully riding thereupon; that just as the train started one of defendant’s brakemen came toward him, and the plaintiff, after running across a flat car, jumped from the train, and that as he jumped the brakeman also jumped from the car upon him, striking him before he reached the ground, breaking his leg, and then, raising him up from the ground, continued the assault. In that case the court said it was inclined to the view that the jury might have found that the assault upon the plaintiff commenced on the car before they left the train, and announced that, “If the assault was commenced before leaving the car, the brakeman was acting within the scope of his employment, and the defendant became liable for his acts.” Page 292, 166 N. Y., and page 821, 59 N. E. The case at bar presents an assault of somewhat different character. Here Kennedy, when hurt, was not, and had not been, in the company of the crowd of boys, and there is no evidence upon which it could be predicated that Voltz conceived Kennedy to be committing a breach of the peace. The boy was simply an observer of what was taking place. He had not been, and was not then, nearer the plaintiff’s premises than the sidewalk across the public street. In the Girvin Case the employé was directing his attention toward and his assault upon one who he evidently conceived was interfering with his master’s property and rights. No possible view of the facts at bar would warrant an assumption that Voltz had in mind that the injured boy was doing anything to prevent which he might possibly be acting to the furtherance of his master’s business or his master’s interests. If the brakeman in the Girvin Case had chased off his train, by threatening to throw a lump of coal, a trespassing crowd of boys, and then, turning, and discovering a strange lad at the side of the railroad and without the right of way, had struck him with the coal, this case would .have been presented; and we do not believe that

The case of Grimes v. Young, 51 App. Div. 239 , 64 N. Y. Supp. 859 , decided in this department upon the opinion of Mr. Justice Bartlett, seems to present a state of facts more nearly similar to those in hand than were disclosed in the Girvin Case. The plaintiff’s intestate was shot down by one Buck, night watchman on defendant’s premises, and this language is to be found in the opinion:

“It is not clear from the evidence that when Buck fired the fatal shot he had gone on duty for the night as the defendants’ watchman; but, whether he had or not, it is manifest that his assault upon Grimes was an act wholly outside the scope of his employment, and having no connection whatever therewith. The Grimes boy was not upon the premises of the defendants, nor had he made any attempt to trespass upon their property, or interfere therewith. He had been bathing in the river with a number of companions, and after leaving the water, and while standing upon the public wharf, was shot down by Buck without the slightest provocation.” Page 241, 51 App. Div., and page 860, 64 N. Y. Supp.

In that case it was held that the master was not liable.

The conduct of Voltz, we think, was such that there can be drawn therefrom no inference that he was acting, or intended to act, for his master in striking the boy Kennedy. He went outside his employment, and, without regard to his service, committed a trespass for which the defendant is not responsible.

The judgment should be affirmed.

Judgment affirmed, with costs. All concur, except WOODWARD, J., who dissents, and BARTLETT, J., who takes no part..

While this case is not free from doubt, I am disposed to dissent from the result reached by the majority of this court. Assuming the most favorable inference from the facts, the defendant’s janitor, for the purpose of driving away some noisy and troublesome boys, ran out upon the sidewalk in front of the defendant’s premises, and, seeing plaintiff’s son on the opposite side of the street, and no doubt assuming him to have been one of those who had been producing the disturbance, threw a club at him, causing the injuries complained of here. If he was the defendant’s janitor or watchman, and had charge of the premises, he was given the authority to drive away such persons as should trespass upon or annoy those who were lawfully in possession of the premises, and in' the act of driving these boys away he was doing the work of the mas

I think this judgment should be reversed.