The opinion of the court was delivered by
Rowell, J.
The defendant offered evidence tending to show that before and at the time in question the tiles were the property of Ripley Sons, and in the custody and control of Mason as an individual, and not as water superintendent nor street commissioner, both of which offices he had for a long [435]*435time and then held. The plaintiffs objected to the admission of this evidence, for that it was not competent to show snch facts. But the referee admitted it, and found therefrom .certain facts, which he details, and from those facts alone he finds that the tiles in the corporation yard on the day of the accident were not when piled there the fall before, nor thence until after the accident, the property of the village, nor in its custody or control, nor in the custody or control of its servants or employees as such.
It was competent to show what it is said the evidence tended to prove, unless it is to be said that the village is liable any way, because the tiles were on its land and in its apparent custody and control. But such is not the rule in respect of real estate, as we shall see, unless the act complained of is a-nuisance in itself, or, perhaps, a public trust is involved, neither of which elements is present here.
It is not claimed that the evidence did not tend to show the facts found from it, but that the findingjrom those facts is un-wai-ranted. And here the question is, Do those facts tend to support the finding? If they do, the finding must stand. It is true,' as argued, that many of them tend strongly against the finding, and to show that the custody and responsible control of the tiles were in the village in fact as well as in appearance, and for its own purposes and business; but it is also true that some of them tend to show the contrary, and to support the finding, and so it must stand, and the case be decided from that standpoint; for we do not think, as argued by Mr. Buck, that the exhibits referred to preclude parol evidence of ownership, nor that the defendant is estopped to deny its custody of the tiles.
It is contended that the rule laid down in Joel v. Morrison, 6 C. & P. 501, governs this case. There the defendant’s servant, in going from one place to another with his master’s team on his master’s business, drove extra viam for some purpose of his own, and while thus driving negligently ran against and injured the plaintiff; and it was held that if the
[436]*436servant was going out of bis way against his master’s implied command when driving on his master’s business, he made his master liable ; but if he was going on a frolic of his own, without being at all on his master’s business, that the master was not liable. The law is here most properly laid down, as said in Sleath v. Wilson, 9 C. & P. 607, where it is said to be quite clear, that if a servant, without his master’s knowledge, takes his carriage out of the coach house, and with it commits an injury, the master is not liable, and on the ground that he has not intrusted the servant with the carriage ; but that, when the master has intrusted the servant with the carriage, it is no answer to say that the servant acted improperly in its management, for if so, it might be claimed that if the master directs his servant to drive slowly but he disobeys and drives fast and thereby negligently causes an injury, the master is not liable, which is not the law, for in such case the master is liable, because, by entrusting the servant with the carriage he has put it in his power to mismanage it.
Quinn v. Power, 87 N. Y. 535, is much to the same point. There the defendant owned a ferry boat running across the Hudson between two points. One day when the boat was making a regular trip, the pilot in charge took on a boatman as matter of favor, and agreed to put him on board his boat, which was part of a tow passing up the river. The ferry boat diverged from its course to reach the tow, and through the negligence of those in charge collided with a canal boat attached to the tow, whereby the plaintiff’s intestate was thrown into the river and drowned; and the defendant was. held liable. In discussing the case the court says : ‘ ‘ When this ferry boat left the dock at Athens it started for its terminus at Hudson. It took freight and passengers to transfer across the river. Servants and boat, as the latter moved out into the river, were doing the master’s business and acting both in the line of duty and employment. There was a usual track or route by which the boat crossed. It may even have been selected and directed by the owner. In deviating from it the [437]*437servants might disregard the instructions of the master, but they were none the less engaged in the master’s business of transporting freight and passengers from one point to the other because they did not follow the usual route or pursued another or even a forbidden track. They were still doing their master’s business, though in a manner contrary to his instructions. If they stopped the boat in the middle of the river, they did not cease to be engaged in the master’s'business. Even if the motive was some purpose of their own, they were still about their usual employment, although pursuing it in a way to sub-serve their own purpose also. When they took this passenger to the tow, and in so doing deviated from the usual course, and stopped the boat midriver for that reason, they were still engaged in the master’s business of transporting freight and passengers across the river. They were doing it in a way not authorized, perhaps, and possibly in some sense to. effect a purpose of their own; but they were none the less acting within the scope of their employment and engaged in their master’s business.” This reasoning brings out clearly both the rule and its application.
The rule of respondeat superior is of universal application, whether the act be one of omission or of commission, whether negligent or fraudulent. And it makes no difference that the master did not know of the act, or disapproved it, or even forbade it, provided the servant was acting at the time for the master and within the scope of the business entrusted to him. Philadelphia & Reading R. R. Co. v. Derby, 14 How. 468; Rounds v. The Delaware, Lackawanna & Western R. R. Co. 64 N. Y. 129; Quinn v. Power, 87 N. Y. 535.
But the foundation of the rule is, the relation of master and servant. When that does not exist, the law does not impute to one man the negligence of another. Hexamer v. Webb, 101 N. Y. 377; Quarman v. Burnett, 6 M. & W. 499. Hence, the modern cases all show that it is not enough in oi’der to charge one man with the negligence of another, to show that the latter was acting at the time under the employment of the [438]*438former; but you. must go further and show that the employment created the relation of master and servant between them. Hilliard v. Richardson, 3 Gray, 340, where the cases are collated and commented upon.
Now, testing this case by the rule invoked for its government, we regard the finding that the tiles were not the property of the village, nor in its custody'or control, as perfectly fatal to the plaintiffs’ right of recovery, as it absolutely negatives the existence of the relation of master and servant between the village and Mason or any other of its employees in respect of the tiles, and precludes the considerations urged upon us to show the contrary.
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The opinion of the court was delivered by
Rowell, J.
The defendant offered evidence tending to show that before and at the time in question the tiles were the property of Ripley Sons, and in the custody and control of Mason as an individual, and not as water superintendent nor street commissioner, both of which offices he had for a long [435]*435time and then held. The plaintiffs objected to the admission of this evidence, for that it was not competent to show snch facts. But the referee admitted it, and found therefrom .certain facts, which he details, and from those facts alone he finds that the tiles in the corporation yard on the day of the accident were not when piled there the fall before, nor thence until after the accident, the property of the village, nor in its custody or control, nor in the custody or control of its servants or employees as such.
It was competent to show what it is said the evidence tended to prove, unless it is to be said that the village is liable any way, because the tiles were on its land and in its apparent custody and control. But such is not the rule in respect of real estate, as we shall see, unless the act complained of is a-nuisance in itself, or, perhaps, a public trust is involved, neither of which elements is present here.
It is not claimed that the evidence did not tend to show the facts found from it, but that the findingjrom those facts is un-wai-ranted. And here the question is, Do those facts tend to support the finding? If they do, the finding must stand. It is true,' as argued, that many of them tend strongly against the finding, and to show that the custody and responsible control of the tiles were in the village in fact as well as in appearance, and for its own purposes and business; but it is also true that some of them tend to show the contrary, and to support the finding, and so it must stand, and the case be decided from that standpoint; for we do not think, as argued by Mr. Buck, that the exhibits referred to preclude parol evidence of ownership, nor that the defendant is estopped to deny its custody of the tiles.
It is contended that the rule laid down in Joel v. Morrison, 6 C. & P. 501, governs this case. There the defendant’s servant, in going from one place to another with his master’s team on his master’s business, drove extra viam for some purpose of his own, and while thus driving negligently ran against and injured the plaintiff; and it was held that if the
[436]*436servant was going out of bis way against his master’s implied command when driving on his master’s business, he made his master liable ; but if he was going on a frolic of his own, without being at all on his master’s business, that the master was not liable. The law is here most properly laid down, as said in Sleath v. Wilson, 9 C. & P. 607, where it is said to be quite clear, that if a servant, without his master’s knowledge, takes his carriage out of the coach house, and with it commits an injury, the master is not liable, and on the ground that he has not intrusted the servant with the carriage ; but that, when the master has intrusted the servant with the carriage, it is no answer to say that the servant acted improperly in its management, for if so, it might be claimed that if the master directs his servant to drive slowly but he disobeys and drives fast and thereby negligently causes an injury, the master is not liable, which is not the law, for in such case the master is liable, because, by entrusting the servant with the carriage he has put it in his power to mismanage it.
Quinn v. Power, 87 N. Y. 535, is much to the same point. There the defendant owned a ferry boat running across the Hudson between two points. One day when the boat was making a regular trip, the pilot in charge took on a boatman as matter of favor, and agreed to put him on board his boat, which was part of a tow passing up the river. The ferry boat diverged from its course to reach the tow, and through the negligence of those in charge collided with a canal boat attached to the tow, whereby the plaintiff’s intestate was thrown into the river and drowned; and the defendant was. held liable. In discussing the case the court says : ‘ ‘ When this ferry boat left the dock at Athens it started for its terminus at Hudson. It took freight and passengers to transfer across the river. Servants and boat, as the latter moved out into the river, were doing the master’s business and acting both in the line of duty and employment. There was a usual track or route by which the boat crossed. It may even have been selected and directed by the owner. In deviating from it the [437]*437servants might disregard the instructions of the master, but they were none the less engaged in the master’s business of transporting freight and passengers from one point to the other because they did not follow the usual route or pursued another or even a forbidden track. They were still doing their master’s business, though in a manner contrary to his instructions. If they stopped the boat in the middle of the river, they did not cease to be engaged in the master’s'business. Even if the motive was some purpose of their own, they were still about their usual employment, although pursuing it in a way to sub-serve their own purpose also. When they took this passenger to the tow, and in so doing deviated from the usual course, and stopped the boat midriver for that reason, they were still engaged in the master’s business of transporting freight and passengers across the river. They were doing it in a way not authorized, perhaps, and possibly in some sense to. effect a purpose of their own; but they were none the less acting within the scope of their employment and engaged in their master’s business.” This reasoning brings out clearly both the rule and its application.
The rule of respondeat superior is of universal application, whether the act be one of omission or of commission, whether negligent or fraudulent. And it makes no difference that the master did not know of the act, or disapproved it, or even forbade it, provided the servant was acting at the time for the master and within the scope of the business entrusted to him. Philadelphia & Reading R. R. Co. v. Derby, 14 How. 468; Rounds v. The Delaware, Lackawanna & Western R. R. Co. 64 N. Y. 129; Quinn v. Power, 87 N. Y. 535.
But the foundation of the rule is, the relation of master and servant. When that does not exist, the law does not impute to one man the negligence of another. Hexamer v. Webb, 101 N. Y. 377; Quarman v. Burnett, 6 M. & W. 499. Hence, the modern cases all show that it is not enough in oi’der to charge one man with the negligence of another, to show that the latter was acting at the time under the employment of the [438]*438former; but you. must go further and show that the employment created the relation of master and servant between them. Hilliard v. Richardson, 3 Gray, 340, where the cases are collated and commented upon.
Now, testing this case by the rule invoked for its government, we regard the finding that the tiles were not the property of the village, nor in its custody'or control, as perfectly fatal to the plaintiffs’ right of recovery, as it absolutely negatives the existence of the relation of master and servant between the village and Mason or any other of its employees in respect of the tiles, and precludes the considerations urged upon us to show the contrary. Although Mason and the others who handled and piled the tiles were at the time the employees of the village, yet they were not its servants as to them, for it was not the business of the village, nor a matter in which it had any property nor over which he had any control; but it was a frolic of Mason’s own, in which he seems to have taken advantage of his official positron for the purpose of private gain.
Nor do we see any other ground on which the plaintiffs can stand.
It has sometimes .been said that there is a distinction in this respect between fixed and movable property, and that one in the possession of the former must take care that it is not so used as to injure others, and this, whether it be used by his own immediate servants or by contractors or their servants; that injuries done upon such property are in the . nature of nuisances, for which the occupant ought to be held chargeable when occasioned by those whom he brings upon it; that the law confines its use to him, and he should take care not to bring persons upon it who do mischief to others. This distinction is adverted to in Laugher v. Painter, 5 B. & C. 547; The Mayor etc. of New York v. Bailey, 2 Denio, 433; and noticed in Quarman v. Burnett, 6 M. & W. 499. But on full consideration in Hobbit v. The London & Northwestern R. R. Co. 4 Exch. 254, it was held that there is no such distinction [439]*439except when the act complained of is such as to amount to a nuisance. And this is undoubtedly the present view. But possibly we should add to the exception, cases involving a public trust, as intimated in Hilliard v. Richardson, 3 Gray, 349, 364.
The result is that the judgment below is reversed, and judgment on the report for the defendant.
The petition for a new trial, preferred by the defendant, has no foundation, and is dismissed with costs.
And now before entry of judgment the plaintiifs move that the judgment below be reversed pro forma and the cause remanded, to the end that the report may be recommitted to the referee for him to revise his finding in respect of the ownership, custody and control of the tiles, because, it is said, that point was not regarded by plaintiffs’ counsel as very material, and was not given much prominence before the referee; and counsel think that the finding of the referee is so manifestly wrong that on further hearing and full argument, even without more testimony, it is very certain he would change it.
When this case was here on exceptions to the directing of a verdict for the defendant — 56 Vt. 519 — a prominent question was, whether there was evidence tending to show that the village had the custody and control of the tiles; and it was held that there was, and that if it had, their ownei’ship was immaterial. It also appears from papei’s now handed up that the point was brought to the attention of the referee by both sides, as well in requests for fixxdings as in the bi'iefs of counsel. It also appears from briefs used before the County Court that the matter was discussed there.
In these circumstances we know of no practice that will warrant the granting of this motion. .It amounts to asking for a new trial for the purpose of experimenting with the referee for a different result.