Treadwell v. Mayor of New York

By the Court.

Daly, F. J.

If it he conceded that the defendants are the owners of the school-house, still, as they had not and could not have, (Laws of 185l, 747, §§ 23, 24, 7,) any tiling to • do with the employment of Tucker, through whose want of skill or negligence the plaintiff was injured, they are not responsible. “ Where,” says Jewett, J., in Pack v. The Mayor, 4 Seld. 222, “ the party employing has the selection of he party employed, it is reasonable that lie who has made ciit/iee of an unskillful or careless person to execute his orders, should be responsible for an injury resulting from the want of skill or want of care of the person employed.” This is the rule with the reason upon which it is founded succinctly stated. The authority to- erect the school-house was granted by the Board of Education, and the contracts for ltd erection were entered into by the school officers of the Twelfth Ward. They contracted with Tucker to do the mason work, and with die plaintiff to do the carpenter work, and as the injury to the plaintiff arose from the falling in of the wall of the school house in the course of its erection, through the negligence or want of skill of Tucker, the defendants are not answerable for his acts. It has been distinctly settled in the case above cited and in Kelly v. The Mayor, &c., 1 Kernan, 432, and in Blake v. Ferris, 1 Seld. 48, that the relation of principal and agent or master and servant does not exist unless the party sought to be charged, employed, or had the selection of, the person to whose negligence the injury is attributable, though what was done was for that party’s benefit, and though it may have been done under the supervision of an agent or officer appointed by him. *

.But independent of the question of the responsibility of the defendants, the principle of respondeat superior is not applicable in the case at all. It is well settled in this State that an employer is not liable to one of his agents or servants for the negligence of another of his servants or agents, unless he was himself at fault in the selection of the agent,'or in some other respect. In the prosecution of a general enterprise the employer does not warrant to each person who engages in the enterprise the competency of every agent employed, and cannot be made responsible unless it is shown that he was guilty of a want of care or of negligence in the selection of the person through whose negligence the injury occurred, though it is otherwise where the relation of master and servant, or of principa! and agent does not exit, upon grounds of public policy, Tanant v. Webb, 18 Common Bench, 797. If the contract in this case was for the erection of a wall of insufficient width or thickness, and the injury arose from putting np a wall of that descriptivo', the principal should be answerable for that which was the direct consequence of his own act. Keegan v. The Western R. R. Co. 4 Seld. 173. But it was clearly shown in the case that the falling of the wall was not attributable to any thing in the contract, plan or specification, but arose from the insecure or improper way in which Tucker, the mason, laid the foundation, and there was no evidence whatever from which the jury could find that the school officers were guilty of want of care or negligence in employing Tucker to do the mason work.

The nonsuit, therefore, was properly granted.