
    Margery Howard, Respondent, v. Isidor Ludwig and Bernhard J. Ludwig, Appellants.
    
      A driver for an expressman, temporan'ily employed by a furniture dealer — when the latter is liable for the driver’s negligent act.
    
    A driver in the general employ of an expressman was, under a contract between the -expressman and a furniture dealer, temporarily withdrawn from the business of the former and transferred, with his horses and truck, to the furniture dealer, whose firm name and place of business were put on the truck, to be used by him in his business, not in a special or particular instance, but generally so . far as concerned that business in a particular locality.
    
      Held, that whether the agreement was that the expressman should deliver the furniture dealer’s goods for a specified sum a week or should furnish the furniture dealer with an outfit for that purpose, the latter, in' either case, having tlie use and control of the outfit for the time being just as though it was his own, was liable for the driver’s negligent act, committed while delivering his goods.
    Goodrich, P. J., dissented.
    Appeal by tlie defendants, Isidor Ludwig and another, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 27th day of March, 1900, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 30th day of April, 1900, denying the defendants’ motion for a new trial made upon the minutes.
    
      John S. Davenport, [ William Strauss with him on the brief], for the appellants.
    
      Denis A. Spellissy, for the respondent.
   Hibschbebg-, J.:

The plaintiff recovered judgment for injuries sustained by collision on a public highway with a wagon which the complaint alleges was at the time owned or controlled and used by the defendants, and managed by their servant in the course of their business. The main question presented on the appeal relates to the liability of the defendants for the negligent acts of the driver.

The defendants were engaged in the furniture business, and the wagon was used at the time of the accident in the delivery of their goods to purchasers on Staten Island. Their firm name and place of business was on the truck, but the truck and horses were owned by a firm of truckmen, Albersmeier & Bickert, doing business under the name of the University Express Company, and the driver was in the general employment of such firm. The' arrangement under which the firm of truckmen furnished the horses, wagon and driver to the defendants was oral and had been in operation a number of years, but no definite evidence was given as to the terms of the contract, excepting that for the sum of thirty dollars a week, Albersmeier & Bickert furnished the defendants with a truck, horses and driver for the purpose of delivering goods sold by them to their Staten Island customers. The driver reported every morning with the truck and horses at the defendant’s place of business, received a list of the deliveries from defendants’ shipping clerk, loaded the goods upon the wagon, and after the work was done returned to Albersmeier & Bickert’s stable. There was considerable evidence given as to o£her conditions of the contract, but they were very evidently conclusions of the witnesses rather than statements of fact. It did clearly appear, however, that there was no engagement one way or the. other as to who should pay the ferriages, and that such payment was in fact always made by the defendants. It also clearly appeared that the agreement under which the horses, wagon and driver were furnished to the defendants, was made with the predecessor in business of the firm of Albersmeier-& Bickert, and-was adopted and continued by that firm when formed by a tacit under- . standing only.

I am satisfied from the evidence that the contract required Albersmeier & Bickert to furnish the wagon, horses and driver to the . defendants in order to enable the latter to make the deliveries in question, and that they were actually placed under the control of the defendants for that purpose. Although the driver was not hired or paid by them, and they could not have discharged him from his general employment, yet he was their servant at the time of -the accident in a sense and degree which served to render them liable for his negligence under the doctrine of respondeat superior. Although the driver was employed generally in the express -business, he was by virtue of the contract between his employers and the defendants actually engaged at the time of the collision in the furniture business, and was occupied in delivering furniture as a part of and pursuant to the defendants’ contracts' of sale. It may be conceded that the defendants could make a contract for the delivery of their goods by express in such a way that no liability on their part would result because of negligence in the course of trans- ■ portation, but the mere general hiring at so much a week of horse, wagon and driver with which to do the work is not necessarily such a contract. The. learned trial justice submitted the question of the nature of the contract to the jury to decide upon all the evidence whether the arrangement was one by which Albersmeier & Bickert undertook themselves to make the defendants’ deliveries, or by which they furnished the defendants with an outfit to be employed by the latter in making the deliveries. - The verdict must be assumed to be based upon a finding upon this question adverse to the contention of the defendants. The liability of the defendants is well settled upon principle and by authority, and the cases relating to the question have been recently considered by* this court in the case of Baldwin v. Abraham (57 App. Div. 67).

The application of the principles established by these decisions is not difficult in the case in hand. The driver was employed generally* by the expressmen to drive in their business, as common carriers in the delivery of goods and parcels for the public generally. By the contract between them and the defendants, as found by the jury, he was temporarily withdrawn from that business and transferred with his horses and trucks to the defendants, to be used by them in their business, not in a special or particular instance, but generally so far as concerned the Staten Island trade. And this is so for the purposes of this case equally whether the agreement was that Albersmeier & Bickert should deliver the defendants’ goods for thirty dollars a week, or should furnish the defendants with, an outfit for that purpose, so long as Albersmeier & Bickert did in fact fulfill their engagement by actually placing an outfit at the defendants’ disposal so that the latter could and did use and control it for the time being, just as though it was their own. The fact that the defendants, with the apparent sanction and assent of Albersmeier & Bickert, were permitted to put them own name and address upon the wagon as an advertisement to the general public that it was theirs, or at' least in use in their business, is one of great significance in determining in whose service within the law of negligence the driver is to be regarded as' driving at the time of the accident, and to my mind leads to but one conclusion. It follows that at the time of the accident the driver was not engaged' in the express business, but was specifically fulfilling the defendants’ contracts by delivering the goods which they had sold and agreed to deliver. In other wrords, he was carrying out their contracts of sale and delivery. He was subject to their orders and control for the time being in the same sense, if not to the same extent, as he would have been had they hired him directly to drive their own truck and horses.

A detailed discussion of the exceptions is unnecessary. Hone of them, even if well taken, would affect the result.

The judgment and order should be affirmed.

All concurred, except Goodrich, P. J., dissenting, and Sewell, J., taking no part.

Judgment and order affirmed, with costs.  