
    FLORENCE MICHAEL, Respondent, v. BENJAMIN STANTON, Appellant.
    
      Master and servant—test by which to determine when such relation exists—Negligence of servant—injuries occasioned by.
    
    In case of an injury arising from the negligence of a servant, the true test by which to determine who is the master, and consequently who is liable to the party injured, is to determine who employed the servant, and who had the power to discharge him.
    Appeal from a judgment of the County Court of Onondaga county, affirming a judgment rendered in this action against the defendant in a Justice’s Court. The action was “in trespass” for alleged wrongful running into and damaging the wagon of plaintiff on a public highway.
    
      Irving G. Vann, for the appellant.
    To render one person liable for the negligence of another, the relation of master and servant, or of principal and agent, must exist between them. (Stevens v. Armstrong, etc., 2 Seld., 435; Blake v. Ferris, 1 id., 48; Laugher v. Pointer, 5 Barn. & Cress., 560; Quarman v. Burnett, 6 Mees. & W., 497; Rapson v. Cubitt, 9 id., 709; Milligan v. Wedge, 12 Adol. & Ellis, 737; Sproul v. Hemmingway, 14 Pick., 1; Story on Agency, §§ 453, 456; Weyant v. The New York & Harlem R. R. Co., 3 Duer, 360; Schular v. Hudson R. R. R. Co., 38 Barb., 653; Blackwell v. Wiswall, 24 id., 355; Norton v. Wiswall, 26 id., 618; Mayor v. Cunliff, 2 Com., 165; Pack v. Mayor, etc., 4 Sold., 222; Kelly v. Mayor, etc., 1 Kern., 432; Corbin v. American Mills, 27 Conn., 274; O'Rourke v. Hart, 7 Bosw., 511; Moore v. Sanborne, 2 Mich., 519; Clark v. Vermont, etc., R. R. Co., 28 Term., 103; Shearman & R. on Negligence, pp. 71 to 109, and cases cited; Reeves Domestic Relations, pp. 508 to 522.) If it is assumed that it appears from the evidence that Gilbert and the defendant had exchanged works, and that Gilbert sent his servant Hinckley to draw stave bolts for the defendant, then Gilbert, if any one, was alone liable for the injury. This is substantially the same as if Gilbert had undertaken to carry the stave bolts of the defendant for hire, 
      when, although the team might be exclusively occupied for the use of the hirer, it would remain entirely under the control of Gilbert, and he alone would, unquestionably, be liable for its negligent management. (S. & R. on Negligence, pp. 90, 91; Story on Agency, §§ 452, 453; Dalyell v. Tyrer, El., B. & El., 899; Crockett v. Calvert, 8 Ind., 127; Fenton v. City of Dublin Steam Packet Co., 8 Adol. & E., 835.) The hirer cannot properly be said to have control of the servants, unless he has the right to discharge them and employ others in their places, in case of their misconduct or incapacity, that being the only practicable means by which free servants can be controlled. (S. & E. on Negligence, § 74; Boniface v. Relyea, 5 Abb. [N. S.], 259; Holmes v. Onion, 2 C. B. [N. S.], 790.)
    
      A. L. Johnson, for the respondent.
    If there is any evidence to support a judgment, the court will not reverse the judgment because it is slight. (12 Johns., 298; 1 Hill, 61; 5 Barb., 560; 11 id., 387; 31 N. Y., 480.) Every legal intendment will be made in favor of the judgment. (15 Barb., 96; 3 E. D. Smith, 115; 9 Johns., 146.)
   Mullin, P. J.:

This action was commenced in a Justice’s Court of the county of Onondaga, to recover damages done to plaintiff’s wagon by the negligence of defendant’s servant. The plaintiff had judgment, and on appeal to the County Court it was affirmed. The defendant now appeals to this court.

One Hinckley was drawing stave bolts belonging to defendant, from Jamesville into the city of Syracuse. The plaintiff met the team driven by Hinckley on a canal bridge in Syracuse; plaintiff was going down the hill, and Hinckley, with his team, was going up. The fore wheels of each of the wagons passed, but when the hind wheel of Hinckley’s wagon came up to the fore wheels of plaintiff’s, it struck plaintiff’s fore wheel and broke out a spoke and injured the spring. The plaintiff testified that he turned to the right as far as he could, and Hinckley testified that there was snow on the ground, and that the hind wheels of his wagon slipped and struck plaintiffs wagon.

It cost plaintiff six dollars to get his wagon repaired.

Gilbert and Stanton occasionally changed work with their teams. Gilbert sent Hinckley to draw the bolts for defendant, and told him where to load. He, Hinckley, had worked for defendant before in changing work, and had been at Gilbert’s when Stanton was there at work.

This is the substance of all the evidence as to the master in whose employ Hinckley was on the occasion of the injury.

To authorize the justice to render a judgment against the defend ant, he must have found that Hinckley was in defendant’s employ.

Such is not the legitimate conclusion from the evidence. It seems to me clear that Hinckley was in Gilbert’s employ, and the latter, and not Stanton, was liable for his negligence. The defendant did not employ Hinckley, and had not the power to discharge him. This is the only test by which to determine which is the master, and, as such, liable to the person injured.

No negligence was proved on the part of Hinckley. But that question was not distinctly raised on the trial, and cannot be insisted on as a ground for reversing the judgment.

The judgment of the County Court and of the justice, must be reversed.

Present— Mullin, P. J., Smith and Gilbebt, JJ.

Judgment of County Court and of the justice reversed. 
      
       Blake v. Ferris, 1 Seld., 48, and cases cited.
     