Wyllie v. Palmer — 43 N.Y. St. Rep. 92

Majority

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Robert Wyllie and Jane Wyllie, App’lts, v. James Palmer, Jr., and Joseph W. Palmer, Resp’ts.

(Supreme Court, General Term, Fifth Department,

Filed January 22, 1892.)

Headnote

Master and servant—Negligence.

The citizens of Auburn purchased a quantity of fireworks of defendants, who sent a man with them to take charge of the display, and also a young

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man nineteen years o d. The committee appointed by the citizens took charge of the arrangements, and while the chairman and the man sent by defendants were firing some set pieces, the chairman sent the young man with another of the committee to fire rockets. In doing this a rocket was accidentally discharged, which injured plaintiff. Held, that in firing the rockets the young man was the servant of the committee and not of the defendants, and that they were not liable for his negligence.

Appeal from a judgment dismissing the plaintiff’s complaint upon the merits, entered upon a nonsuit directed at the Cayuga circuit in June, 1890 ; and from an order denying the plaintiff’s motion for a new trial made upon the minutes.

James R. Cox, for app’lts; Nathaniel Foote, for resp’ts.

The citizens of Auburn, wishing to have an exhibion 1888, at a public meeting held in that city, appointed a committee consisting of George H. Battams, J. H. Pearson and others to take charge of the preparations for.and arrangements of the exhibition. Battams was-chairman of the committee and entered into negotiation by correspondence with the defendant^, who resided in the city of Rochester and were manufacturers of fire works.

Under date of June 12th, Mr. Battams writes:

“We have decided to have a four hundred dollar display.. Will you please inform me what you will give for that * * *. Please give us a fine display.”

Defendants wrote under date of May 22d : •

“We enclose program of exhibition * * *. We also enclose printed sheet giving full instructions for firing the display.”' Defendants wrote under date of June 14th :

“We understand that we have your positive order for display to cost four hundred dollars net including expense of man and we enclose you programme representing the goods we will send. * * * We will put our best work in it and you will be pleased.”

The defendants shipped the fireworks to the committee by rail. The committee received them and paid the freight thereon from Rochester; and on the 3d day of July the defendants sent to Auburn their employee, Mr. Royce, an expert in fireworks. They also sent with him a lad nineteen years old by the name of Kemitz, who was in their employ. When the time for exhibiting the fireworks arrived, on the evening of July 4th, the committee, of which Mr. Battams was chairman, assumed control of the general management of the exhibition. Battams and Royce, at the places selected by Battams, arranged that part of the fireworks known as the fixed pieces. It was arranged- that the rockets should be fired at a place away from the fixed" pieces. Kemitz -was with. Battams and Royce assisting in putting up the frames of the set pieces; and while they were thus engaged, and after they had fired some of the set pieces, Mr. Pearson, one of the committee, came to where they were and inquired of Mr. Battams if he should not go to work and fire some of the rockets. Battams replied: “Yes; take the young man Kemitz, and you and he can fire off the rockets,” and they went to where the rockets were. and com

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menced firing. Pearson testified: “ I got the order from the chairman of the committee to go and fire them, and I suppose I was in charge of them.” He testified that he considered that he was in charge of it, and that Kemitz did as he directed. Kemitz, while firing the rockets, negligently and carelessly exploded a rocket which was lying upon the ground, and not arranged to be then exploded. The rocket flew along horizontally, struck the plaintiff, who was standing in the street witnessing the,exhibition, breaking and burning her arm.

The sole question presented by this apjDeal is, was Kemitz, while firing the rockets, the servant of the committee, or of the defendants.

There is no evidence in the case that the defendants sent Kemitz to have charge of the explosion of the rockets, or that they expected that he would be employed at that work. While Kemitz testified that he had theretofore had some experience in firing rockets, there was no evidence that the defendants considered him competent to do such work. He was sent there for one purpose, and one only; to assist Boyce in arranging the fixed pieces. Battams, as chairman of the committee, assumed to direct Kemitz to assist Pearson in firing the rockets. Boyce gave him no directions about firing the rocketsi While Boyce was sent as an expert to look alter the mechanical part of the work, the committee assumed the general management and direction of the exhibition. The defendants had sold and shipped the fireworks as requested, and pursuant to' the request of the committee had sent Mr. Boyce to take charge of the display. When Battams assumed to direct ■the boy to- fire the rockets, a kind of work the defendants had not sent him to do, it must be held, we think, that the boy was not when thus engaged the servant of the defendants. To hold the defendants liable for the acts of the boy when he was under the direction of the committee, and was doing work the defendants had not directed him to do, would be doing violence to the rule of law which is well stated in Shearman & Redfield on Negligence, § 73, as follows: “He is to be deemed the master who has the supreme choice, control and direction of the servant, and whose will the servant represents; not merely in the ultimate result of his work, but in all its details. * * * Servants who are employed and paid by one person may nevertheless be, ad hoc, the servants of another in a particular transaction, and that, too, where their general employer is interested in the work. They may, without consulting their master, but in good faith, assist a person independently employed to do something which shall benefit their master, but with which neither he nor they have any right to interfere, and in which they act entirely under the control of such other persons. In none of these cases is the nominal master responsible to strangers for their acts or omissions.”

The trial court correctly held that ‘the defendants were not responsible for the negligence of Kemitz.

The judgment and order appealed from should be affirmed.

Dwight, P. j., and Macombeb, J., concur.