
    Solomon Koenitsky, Plaintiff, v. John Matthews, Defendant.
    (City Court of New York, Trial Term,
    July, 1909.)
    Master and servant — Liability for injuries to third persons — Relation of parties — Right to control.
    Where the defendant, a manufacturer, arranges with a stableman to supply horses and drivers to draw his trucks to deliver his goods, and the stableman, not having enough of his own, hires a team and driver for the work; and where the defendant’s truck was loaded with his cans and accompanied by one of his employees whose duties were to visit the defendant’s customers to deliver supplies from the wagon, to collect money from the defendant’s customers and to keep an order book, marking down the number of cans delivered and empty cans taken away, and to direct the driver where to go; and where the truck, while it was being driven home with defendant’s cans on board, was driven at a fair rate of speed by the driver so close to a street car that the plaintiff, who was attempting to board the car, was struck by the truck and injured, it appearing that the defendant had at that time the right to control and direct the movements of the driver, even though be was not directly in his employ, the defendant is liable for the injury so inflicted through his negligence.
    In such a case, in determining the question of the defendant’s liability, it is not so much the actual exercise of control which is regarded as the right to exercise such control.
    Motion on the judge’s minutes to set aside the verdict and for a new trial.
    Rabinowitz & Perlow (Lynn W. Thompson, of counsel), for plaintiff.
    James B. IIeeney, for defendant.
   Finelite, J.

A jury having found a verdict in favor of the plaintiff, a motion was made by the defendant on the judge’s minutes to set aside the verdict and for a new trial. Decision was reserved on said motion on the question whether the defendant controlled the driver whose alleged negligence caused the injuries to the plaintiff. In other words, was the driver of the wagon in the employ of the servant ad hoc of the defendant at the time of the alleged accident? The contention of the defendant is that the driver of the truck was not his servant, and the doctrine of respondeat superior does not apply. It appears from the facts testified to at the trial that on the 22d day of May, 1907, the plaintiff, while about to board a north bound Madison avenue car, at the "Bowery and East Fourth street, in the borough of Manhattan, city of Few York, received injuries to his right foot by one of the wheels of a truck belonging to the defendant running over, crushing and fracturing the same, and preventing him from using it for a period of nine weeks, and he was and still is compelled to use a brace.

It was conceded at the trial that the defendant owned the wagon, but not the horses that were being driven by the driver at the time of the injury to the plaintiff. The defendant is in the business of manufacturing soda water, doing a large business throughout the city. That at the time of the alleged injuries to the plaintiff it was the busy season for the defendant, and that he was obliged to get additional help to deliver the soda water manufactured by it throughout the city, and thereupon made arrangements with one McMahon in the stable -and delivery business to supply the horses and drivers; the bills for the use of the horses and drivers were paid semi-monthly to McMahon. That on the day in question a driver and horses were supplied to the defendant by McMahon, as testified to by one Hein, a witness who testified that he had charge of the delivery and shipment branch of the defendant’s business. . That during these months there was not sufficient help kept by defendant, and when the rush came he hired horses as they were needed to the carrying on of said business, and, as he testified, “we did not have enough horses in the stable of our own, so we hired horses.” That on the morning in question a driver by the name of Day arrived with horses from McMahon’s stable at defendant’s place of business. Defendant’s wagon was loaded with soda water cans. These cans belonging to the defendant were to be delivered throughout the city of Few York to the customers of the defendant. When the said wagon, loaded so with cans, left the defendant’s place of business, one Charles Woelz, an employee of the defendant, accompanied the driver, whose duties were to visit the defendant’s customers, to deliver supplies, if needed, which were taken from the wagon that day. Woelz collected the money from the defendant’s customers. He kept an order book and marked down the number of cans delivered and the number of empty cans taken away. He directed the driver where to go that day. When the truck was driven home it had on it fifteen loaded and a number of empty soda water cans, and as it reached East Fourth street, at the Bowery, the driver was driving at a fair rate of speed and so close to the car that the plaintiff, who was attempting to board the car, was struck and injured.

The recent decisions in this State seem to be uniform in the assertion that the true test as to whether the relation of master and servant exists is not necessarily the payment of wages, but is whether at the time of the injury complained of the alleged servant is engaged in the business of the alleged master and subject to his direction .and control. It is not so much the actual exercise of control which is regarded as the right to exercise such control. As was said by Hirschberg, J., in the case of Baldwin v. Abraham, 57 App. Div. 67, 73, affd., 171 N. Y. 677, “ Even on the forced assumption that the truck in question was one of those hired by written contract, the law would seem well settled in this State to the effect that a question is presented for the consideration of the jury. They would be required to decide under the terms of the contract, viewed in the light of its purpose and the mode actually adopted in its execution and performance, whether the contractor actually made the deliveries, or whether his contract was limited to furnishing the defendants with the means to enable the latter to do so. In the one view the driver might be regarded as working at the time in the business of the contractor, and in the other view as working in the business of the defendants. The control over the driver, depending as a legal right upon the determination of this question, would be decisive of the case.”

In Wyllie v. Palmer, 137 N. Y. 248, cited in the Baldwin v. Abraham case, O’Brien, J., says, at page 257, the following : “ The fact that the party, to whose wrongful or negligent act an injury may be traced, was at the time in the general employment and pay of another person, does not necessarily make the latter the master and responsible for his acts. The master is the person in whose business he is engaged at the time and who has the right to control and direct his conduct. The rule on this subject is well stated by a learned author on the law of negligence as follows: He is to be deemed the master who has the supreme choice, control and direction of the servant, and whose will the servant represents, not merely in the ultimate result of the work, but in all its details. The payment of an employee by the day, or the control and supervision of the work by the employer, though important considerations, are not in themselves decisive of the fact that the two are master and servant. * * * Servants who are employed and paid by one person may, nevertheless, be ad hoc the servants of another in a particular transaction, and that too where their general employer is interested in the work. They may, without consulting their master, but in good faith, assist a person independently employed to do something which shall benefit their master, but with which neither he nor they have any right to interfere, and in which they act entirely under the control of such other person. In none of these cases is the nominal master responsible to strangers for their acts or omissions.’ ”

In Higgins v. Western Union Tel. Co., 156 N. Y. 75, 78, also cited in the Baldwin case, O’Brien, J., says, at page 78, as'follows: “The general rule is that a party injured by the negligence of another must seek his remedy against the person who caused the injury, and that such person alone is liable. The case of master and servant is an exception to the rule, and the negligence of the servant, while acting within the scope of his employment,, is imputable to the master (Engel v. Eureka Club, 137 N. Y. 100). But the doctrine of respondeat superior applies only when the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged for the result of the wrong, at the time -and in respect to the very transaction out of which the injury arose. The fact that the party to whose wrongful or negligent act an injury may be traced was at the time in the general employment and pay of another person does not necessarily make the latter the master and responsible for his acts. The master is the person in whose business he is engaged at the time, and who has the right to control and direct his conduct. Servants who are employed and paid by one person may nevertheless be ad hoc the servants of another in a particular transaction, ■ and that, too, when their general employer is interested in the work. Wyllie v. Palmer, 137 N. Y. 248, 33 N. E. 381, 19 L. R A. 285.”

At page 79 of the same case the court further says: “I am unable to distinguish this case in principle from the cases in this court already cited; and the best considered cases in other jurisdictions are to the same effect (Murray v. Currie, L. R 6 C. P. 26; Rourke v. White Moss Collier Co., 2 C. P. Div. 205). In the latter case, Lord Oockburn stated the rule in these words: {But when one person lends his servant to another for a particular employment, the servant, for anything done in that particular employment, must be dealt with as the servant of the man to whom he is lent, although he remains the general servant of the person who lent him.’ The true test in such cases is to ascertain who directs the movements of the person committing the injury.”

In the case at bar, it appears from the evidence that Day, the driver, was under the management, control and direction of Woelz, the employee of the defendant; and under the latter’s direction was driving the wagon loaded with cans to the defendant’s place of business at the time of the accident, thus clearly establishing the fact that the defendant had at that time the right to control and direct the movements of the driver Day, even though not directly in his employ, as was said in the case of Cunningham v. Syracuse Imp. Co., 20 App. Div. 176, wherein Adams, J., writing the opinion, says: When we come to apply the rule as it is thus stated to the present case, we are unable to see why it does not necessarily dispose of the question we have been considering. For, as has already been stated, the plaintiff at the time he received his injury was engaged in performing services for the defendant, who had the right and did actually assume to control his conduct. For any misconduct or inability to perform the services required of him, the defendant could undoubtedly have discharged him and returned him to his general employer.”

In the case of Howard v. Ludwig, 57 App. Div. 94, affd., 171 N. Y. 507, which is not exactly similar in point but is analogous thereto, Haight, J., writing for the court, says, at page 509, as follows: “It appears that the defendants were dealers in furniture at Hos. 34 and 36 West Fourteenth street in the city of Hew York, as copartners, under the name of Ludwig Brothers, and that they made sales of their goods throughout the city and surrounding country, including Staten Island in the county of Richmond. It also appears that a man by the name of Albersmyer and another by the name of Bickart were engaged in the trucking business under the name of University Express Company, and as such owned the truck and horses and employed the driver who caused the accident. The arrangement between the truckman and the defendants appears to rest in some confusion. It was oral and had been in operation a number of years. The truck-man furnished the defendants each day with a truck, horses and driver for the purpose of delivering goods sold by them to their Staten Island customers, and for this the truckmen were paid by the defendants thirty dollars a week.

“ The defendant Ludwig testified with much distinctness that the agreement was that the truckman should deliver all of the defendants’ Staten Island sales for thirty dollars a week, whether great or small in amount, and that for every truck used by the defendants for their deliveries in the city of Hew York they should pay five dollars per day. The testimony of Ludwig is corroborated to some extent by that of Schoolhouse, who also states that it was the understanding that in case a package was lost the truckman should be responsible for it. The truckman, Bickart, while conceding that they were to furnish the defendants with a team, truck and man for their Staten Island deliveries at thirty dollars per week, testified that in case they had no deliveries to make upon the island, the defendants used the man, truck and team for their Mew York deliveries without additional compensation to them. The testimony of Alhersmyer and of the driver throws but little light upon the question of the difference between these witnesses. It further appears that there was painted upon the truck generally used in the delivery of their Staten Island goods the name of Ludwig Brothers,’ and that the defendants paid the ferriage on the trucks going from Mew York to the island each day.”

“ If, as is claimed by the defendants, the contract was that the express company was to deliver all of the goods sold by the defendants on Staten Island each week for thirty dollars and the company was to be responsible for the goods, if lost, then unquestionably the defendants would not be liable in this action. But if, instead thereof, 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 th goods, sending the team to Staten Island or around New York making deliveries, as the exigency of their business r then the relation of master and servant was created between them and the driver, and they became liable for his acts."

injured through the negligence of such driver, Day, the defendant had no control or supervision over the driver, Day. To say, as is contended under such circumstances, that the defendant would he responsible only for the negligence on the public streets of his regular servants, but not for that of those thus temporarily hired, is so repugnant to reason and justice that it would be little short of amazing if that contention had found approval in the adjudications of the State. It certainly finds no sanction in any authoritative case cited by defendant’s counsel.

In Howard v. Ludwig, supra,, the court below in 57 App. Div. 96, Hirschberg, J., writing, says: “I am satisfied from the evidence that the contract required Albersmyer & 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 could not have discharged him from his general emgyment, yet he was their servant at the time of the acciin a sense and degree, which served to render them fie for his negligence under the doctrine of respondeat Although the driver was employed generally in i was by virtue of the contract between 7 engaged at the time

they had sold and agreed to deliver. In other words, 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.”

The cases cited and relied upon by the defendant (Bohan v. Metropolitan Express Co., 122 App. Div. 590, 594; Lewis v. Long Island R. R. Co., 162 N. Y. 52, 66; Johnson v. Netherlands A. S. N. Co., 132 id. 576 and Henry v. Stanley Hod Elevator Co., 129 App. Div. 613, 616) are not applicable to but are distinguishable from the case at bar. In Bohan v. Metropolitan Express Co., supra, at page 594, the court approved the doctrine laid down in the Baldwin v. Abraham and Howard v. Ludwig cases, supra.

In Bohan v. Metropolitan Express Co., supra, at page 594, the court points out the distinction by saying the following: “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.”

In the Henry v. Stanley Hod Elevator Co., supra, case, the decision and results arrived at were based upon different facts and theories than in the case at bar, and in the Baldwin and Howard cases, supra, and in those cases the court stated that the distinction in Breslin v. Sparks, 97 App. Div. 69, was not observed. This latter case approved the Baldwin and Howard cases, supra, and distinguished Mills v. Thomas Elevator Co., 54 App. Div. 124; affd. without opinion, 172 N. Y. 660, upon which the decision in the Henry v. Stanley Hod Elevator, supra, case is based. It is apparent that in the decision of the Henry case the court recognized the distinction in the cases cited above.

The amount awarded by the jury is not excessive considering the nature of the injury suffered and the extent thereof and the pain and suffering attendant thereto, and under the circumstances the court will let the verdict stand and deny this motion for a new trial. Motion denied.

Defendant may have ten days’ stay of execution after no-. tice of entry of judgment and thirty days to malee and serve a case.

Judgment accordingly.  