#### McDOWELL v. HOMER RAMSDELL TRANSP. CO.

(Supreme Court, General Term, Second Department.

May 14, 1894.)

Master and Servant—When Relation Exists.

One who charters a steamboat with its crew, who were employed by the owner, and assumes control of the boat and crew, thereby adopts the crew as his servants, and is liable for then1 acts.

Appeal from circuit court, Dutchess county.

, Action by Bertram A. McDowell against the Homer Ramsdell Transportation Company. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Argued before DYKMAN and PRATT, JJ.

Albert H. F. Seeger (Wood & Morschauser, of counsel), for appellant.

M. H. Hirschberg, for respondent.

DYKMAN, J.

If the plaintiff prevails in this action, it must be upon the successful invocation of the principle of respondeat superior, because the individual who perpetrated the cruel wrong upon him is not sued; the claim of the plaintiff being that he was the servant of the defendant, who was, therefore, responsible for *822his wrongful act. The rule of law that what a man does by another he does by himself is so well established that it has passed into a legal maxim. And upon that rule is built up another legal principle, equally well established, under the name of “respondeat superior,” which belongs to the relation of principal and agent, master and servant, superior and subordinate, and is coextensive with those relations. The rule itself is free from obscurity, and easily understood, but its applicability to a given case is oftentimes very uncertain, arising from the difficulty of determining whose servant the person is who perpetrated the wrong which caused the injury. The basis of the rule is the power of the superior to prevent the injury by controlling the subordinate, and, where such power does not exist, the rule has no application. It will be of paramount importance, therefore, to ascertain whether the individual who injured the plaintiff was the servant of the defendant at the time of the commission of the act, and therefore a recitation of the facts will not be inappropriate.'

On the 3d day of August, 1892, the defendant was the owner of the steamboat James T. Brett, which was in commission, and supplied with the complement of officers and men employed by the defendant for the successful navigation of the vessel. On that day the boat was chartered to Mink and Burnett for an excursion from Highland, in Ulster county, to Coney Island and back. The charterers advertised the excursion in their own name, and assumed the control of the boat and crew, and received the proceeds of the venture. The excursion was made without accident until the return of the boat to the dock at Fishkill landing, in the evening1. When the boat was leaving the dock, the plaintiff requested and received permission from Burnett to go on board the boat. At that time the gang plank had been hauled in, the rail put up, and the paddle wheels started. The plaintiff jumped upon the guard of the boat outside the rail, and was shoved off into the water by one of the crew. The boat was stopped, and the plaintiff was rescued, but he was placed in imminent peril of his life. At the close of the trial at the circuit the plaintiff was nonsuited, and he has appealed from the judgment.

In the examination of the case we will assume that the plaintiff had the right to go upon the boat as he undertook to do, and that his expulsion was wrongful. While it might be a presumption of law arising from the ownership of the boat that it was in use for its benefit, that presumption is overcome in this case by the proof that the ownership was separate from the possession, which was. not in subordination to the title, but to the charter party. An excursion may be concluded without danger or harm to any one. If it could not, then the defendant might be liable, because it chartered the boat for that very service, and could not escape liability by interposing the contract to do the thing that caused the injury. It is to be observed also that the injury of the plaintiff did not result from any defect in the boat or its machinery or appliances, nor from any fault in the navigation or management of the boat, but from the wrongful conduct of one of the crew. The owner sur*823rendered all control of the boat, and all her employes, and had no immediate interest in her earnings during the existence of the charter party. There was, therefore, an actual demise of the vessel, which stripped the owner not only of the possession of the boat, but also of all authority and control over her. When the charterers hired the boat and crew, that was an adoption and selection of the men, and constituted them their servants, and the men were under their full control. They could remove any of the deck hands for disobedience or misconduct, and that power brought them within the rule laid down in Quarman v. Burnett, hereafter noticed. These facts appear to be sufficient to bring the case within the decision of the court of appeals, in the case of Scarff v. Metcalf, 107 N. Y. 211, 13 N. E. 796. They create the relation of master and servant between the crew and charterers. As there cannot be two superiors at the same time, the defendant is relieved from the position0 if our conclusion is correct. In the case of Blake v. Ferris, 5 N. Y. 48, the doctrine of respondeat superior received the fullest exposition, and the teaching of the case is adverse to the plaintiff here. It was there decided that the immediate employer of the servant, through whose negligence an injury occurred, was personally responsible therefor, and that rule is in accordance with reason and justice when applied to this case. The defendant surrendered the boat and crew to Mink and Burnett, and during the continuance of the charter party they exercised absolute authority over both. So far as the crew was concerned, they were subject to the orders of Mink and Burnett. It was therefore their duty to prevent the molestation of the passengers by the crew, and there was none other who could. The defendant had no superintendent or other person on board to exercise any supervision or care, and, as they were destitute of power, they should be held free from responsibility. The appellant has referred to an English case, where the lessee of a ferry hired from the defendants a boat and crew for one day to carry passengers across. He received the fares, and paid the defendants for the boat. They sent the crew and paid them. The plaintiff, who was a passenger, went on board for the purpose of crossing, and was injured while there by the breaking of some of the tackle by the negligence of the crew, and the court permitted a recovery. It appeared in that case, however, that the crew was controlled by the defendants, and, besides that, the cause of the injury was the breaking of the tackle belonging to the boat. The case is not. sufficiently analogous to this to render it authoritative. There are several English cases much like this. In the case of Milligan v. Wedge, 12 Adol. & E. 737, the defendant, who was a butcher, employed a drover to drive an ox to his slaughterhouse. The drover employed a boy to drive the ox, and he permitted it to run into the show room of the plaintiff, where it caused damage. The defendant had the verdict, which was sustained on appeal. In Quarman v. Burnett, 6 Mees. & W. 499, the defendants owned a carriage, and hired a pair of horses and driver to draw it for a short time, during which the horse and chaise of the plaintiff were injured by the carelessness of the driver, and a suit was brought *824against the defendants. The plaintiff obtained the verdict, and the judge reserved the right to move for a nonsuit, and upon that motion the decision was that the defendants were* not liable, and a verdict was entered in their favor. The opinion in that case contains the following language:

“That person is undoubtedly liable who stands in the relation of master to the wrongdoer, and who selected him as his servant from the knowledge of or belief in his skill and care, and who could remove him for misconduct, and whose orders he was bound to receive and obey. But the liability by virtue of the relation of master and servant must cease when the relation itself ceases to exist, and another person than the master of such servant cannot be liable on the simple ground that the servant is the servant of another, and his act the act of another.”

In the cases of Rapson v. Cubitt, 9 Mees. & W. 709, and Allen v. Hayward, 7 Adol. & E. (N. E.) 960, the facts were similar to the others, and the decisions were the same way. In the case of Laugher v. Pointer, 5 Barn. & C. 547, which was similar, the judges were divided upon the question. The only English case which supports the contention of the plaintiff is Bush v. Steinman, 1 Bos. & P. 404, but that case has been overruled and repudiated both in England and in this country, and is no longer entitled to any respect. Blake v. Ferris, 5 N. Y. 62; Hilliard v. Richardson, 3 Gray, 349. This last case is very instructive, and the facts were these: The defendant, who was the owner of a building by the roadside, entered into a written contract with one Shaw to alter the building into a dwelling house, and to furnish all materials necessary therefor. Shaw procured some boards, and sent them by a teamster, who acted under his direction, to the place for use there, and the teamster piled them up by the side of the road. In a short time thereafter the plaintiff was riding along the road, when his horse became frightened by the boards, and bolted from his course, and the plaintiff was thrown from his wagon, and injured. The plaintiff obtained a verdict, which was set aside in an elaborate opinion, which held the defendant free from liability, and concluded with these words :

“Viewing this as a question not of authority, but to be determined by the application to these facts of the settled principles of law, upon what principle can the defendant be held responsible for this injury? He did not himself do the act which caused the injury to the plaintiff. It was not done by one acting by his command or request. It was not done by one whom he had the right to command, over whose conduct he had the financial control, whose operations he might direct, whose negligence he might restrain. It was not an act done for the benefit of the defendant, and from the doing of which an implied obligation for compensation would arise. It was not an act done in the occupation of land by the defendant, or upon land to which, upon the facts, he had any title.”

These words apply with equal force to this case, and are decisive of this appeal. The judgment should be affirmed, with costs.