
    Charles Bohan, as Administrator, etc., of Margaret Bohan, Deceased, Respondent, v. Metropolitan Express Company, Appellant.
    First Department,
    December 6, 1907.
    Master and servant — negligence — injury by hired motor vehicle — when operator not servant of. bailee.
    An express company which hires a motor van to deliver packages; but has no power or obligation to repair the vehicle, which is operated wholly by a chauffeur furnished by the bailor, is not. liable for the death of a pedestrian who • . O was run over by reason of a defect in the steering gear at a time when the chauffeur, having finished delivering packages, was either taking the vehicle to his employer for repair or was going to get his luncheon. This, because the chauffeur was notYed hoc the servant of the express company!
    
      When the negligence charged in the complaint was that of the chauffeur but no such negligence was shown, there can be no recovery against the bailee when the proximate cause of the injury was the defective steering gear, for which the bailor was alone responsible.
    Appeal by the defendant, the Metropolitan Express Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 16th day of March, 1907, upon the verdict of a.jury for $1,000, and also from an order entered in said clerk’s office on the 22d day of March, 1907, denying' the defendant’s motion for a new trial made upon the minutes.
    
      Arthur K. Wing, for the appellant.
    
      Terence J. McManus, for the respondent.
   McLaughlin, J.:

This action was brought to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the negligence of the defendant.

There is little or no dispute as to the material facts involved. The plaintiff’s intestate, an infant about fourteen months old, was being wheeled in a baby carriage along the easterly sidewalk on West End avenue, between Sixty-ninth and Seventieth streets in the city of Hew York, when an automobile express wagon, upon which appeared defendant’s name, going in a southerly direction on West End avenue turned to the east into Sixty-ninth street. After it had turned into that street, instead of continuing in an easterly direction it turned in a circle and finally ran onto the sidewalk and struck the carriage in which plaintiff’s intestate was riding, and she was thrown out and killed.

At the conclusion of the trial the jury rendered a verdict in favor of the plaintiff for $1,000, and from the judgment entered thereon and from an order denying a motion for a new trial, defendant appeals.

The defendant hired from the Hew York Transportation Oompany, either by the month or day, just which does not clearly appear in the present case, electric vehicles for the purpose of delivering express packages. ' The transportation company employed the chauffeurs for these vehicles, whose sole duty was to operate them. They had nothing to do with the putting of the parcels into the vehicles or of. thereafter delivering them. After the packages were put .into the vehicles- a servant of the express company would go with the chauffeur and make-the deliveries. The,vehicle which caused the death of plaintiff’s intestate was one of those thus hired. It was registered with the Secretary of the State of Mew York by the transportation company as owner. The chauffeur in charge was employed by the -transportation company, wore one of its uniforms and had upon his clothing one of its badges. On the morning of the accident the chauffeur went to the station of the transportation company at Forty-ninth street and Eighth avenue and there took the vehicle to the office of the defendant at Broadway and Seventy-ninth street. It was then loaded with express packages by the express company’s servants, one of whom got onto the seat with the chauffeur and directed him where to go. After all of the packages had: been delivered they returned to the express company’s office, and .the chauffeur then informed the person there in charge that there was some trouble with the vehicle; that the brake did not work right; and he thereupon started, leaving the servant of the .express company at the office, either to go back to the transportation company’s office to have the vehicle repaired or else to go for his lunch, just which does not clearly appear, but the determination of that question, in view of the conclusion I have reached, is of no importance..

The question presented depends primarily for' its determination' upon whether at the time of the accident the chauffeur was a servant of the. express company or of the transportation company. If a servant of the. latter, obviously there can be no recovery against the defendant. (Maxmilian v. Mayor, 62 N. Y. 160.) The doctrine of respondeat superior, whereby the negligence of the servant may be imputed to the master, is based upon his right to select and discharge his servants and control and direct them while in his employ. This doctrine, however, has recently been extended in certain instances to apply to cases where' servants employed and paid by one person are engaged in the business of arid under the direction and control of another, though he have no right of selection or power to discharge. It has-been held in several cases that servants thus employed may become ad hoc the servants of the latter, and this even though he does not employ and cannot discharge them. ( Wyllie v. Palmer, 137 N. Y. 248; Higgins v. Western Union Tel. Co., 156 id. 75 ; Baldwin v. Abraham, 57 App. Div. 67; affd., 171 N. Y. 677; Howard v. Ludwig, Id. 507.)

In Baldwin v. Abraham (supra) the defendants were proprietors of a large department store in Brooklyn and were owners of several vans which they used throughout the year in delivering their goods to purchasers. These vans were found to be insufficient for the holiday trade and they accordingly hired additional vans for the two weeks immediately preceding Christmas day. Under the arrangement by which they hired the additional vans the owners agreed to furnish for each van a driver and helper and to be responsible for the delivery of the goods intrusted to them and for the prompt and safe return of collections of money made. The accident occurred by reason of the negligence of - the driver of one of the vans who was, at that time, actually engaged in deliyering goods which had been intrusted to him. It was held that a verdict in favor of the plaintiff should be sustained; that it could not be said, as matter of law, that the driver of the van was not the servant of the defendants at the time the accident occurred.

In Howard v. Ludwig (supra) the defendants were engaged in the furniture busin'ess in the city of Hew York and had made an arrangement with an express company by which it furnished a truck, with horses and a driver, to make their Staten Island deliveries. What the terms of the arrangements were was a fact which was sharply contested at the trial. The court held that if, as claimed by defendants, the contract was that the' express- company was to deliver all the goods sold by the defendants on Staten Island each week, for thirty dollars, and to be responsible for the goods if lost, then the defendants would not be liable. But if, instead thereof, as claimed by the plaintiff, the arrangement was that the defendants should pay thirty dollars a week for the team, truck and driver, and they took charge of the delivery of the goods, sending the team to’ Staten Island or around Hew York making deliveries as the exigency of their business required, then the relation of master and servant was created between them and the driver and they became liable for his negligent act; and that the testimony at the trial' was such that it was necessary for the jury to determine what the terms of the agreement were, and it having found in favor of the .plaintiff, the judgment should be affirmed.

In the present case if the accident had actually occurred while the express.packages were being delivered, it might be that the defendant would be liable under the rule laid down in the last two cases, but even then it might be doubtful inasmuch as the chauffeur had nothing whatever to do with the handling.of the goods of the defendant or making collections. All he did was to obey the directions as to where he should take the vehicle. (Lewis v. L. I. R. R. Co., 162 N. Y. 52; Johnson v. N. A. S. N. Co., 132 id. 576.) But, as we have already seen, at the time of the accident he had delivered all the packages for the defendant and was not then engaged, in doing any work for it; he was then either taking the vehicle to the transportation company’s office to have it repaired, or else was engaged in his personal business, and in neither case can it be said that he was acting as the servant of the defendant or engaged “in its business, The defendant did not own the vehicle; had no right to inspect it or give directions as to repairs. Under such circumstances I know of no rule of law under which defendant can be held liable.' When the chauffeur left the defendant’s office for the purpose of going back to the transportation company’s office to have the vehicle repaired, or to get his lunch, he ceased to be the servant of the express company, because he was not then engaged in doing its business, and for his negligence in operating the vehicle while thus engaged the express company is not liable.

There is another ground which calls for a reversal of the judgment. The complaint alleges that the accident- happened, and the death of the intestate “ was caused by the negligence and carelessness of the defendant and its said agent (the chauffeur) in failing to properly operate and manage the said motor vehicle.” There is absolutely no ewidence which.shows, or tends to show, that the chauffeur was negligent in this respect. He had had several years’ experience in operating electric vehicles, and no claim is made that- he was incompetent. It does not appear that at the time the accident occurred the vehicle was being run at an unlawful rate of speed. According to the testimony of the chauffeur — which is uncontradicted —- the accident occurred because the steering gear of the vehicle locked and the controller froze, and by reason of that fact he was unable either to change the direction of it or shut off the power until too late to prevent the accident, although he made every effort to do so. When he found that he could not shut off the power, he attempted to pull out the plug which gave the contact, and to shut off the power in this way, but the plug was hot, and he could not get it out until after the accident had occurred. The direct and proximate cause of the accident, therefore, was the defect in the vehicle, and if this were due to any one’s negligence, it w'as that of the transportation company, which alone was responsible for its condition, and not the defendant or the chauffeur. The chauffeur, as we have already seen, complained to the defendant of the condition of the vehicle, and was about to take it back for the purpose of having it repaired-It was owned by the transportation company, was furnished to the defendant for a specific purpose, and it had no authority to determine whether repairs should be made or to make repairs.

The judgment and order appealed from, therefore, must be reversed, and a new trial ordered, with costs to appellant to abide event.

Ingraham and Scott, JJ., concurred; Houghton, J., concurred on last ground only; Patterson, P. J., concurred in result.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  