
    Paul Hanatsek, as Administrator, etc., of Rudolph Hanatsek, Deceased, Appellant, v. Peter K. Wilson and Others, Doing Business under the Firm Name and Style of P. K. Wilson & Son, Respondents, Impleaded with Elizabeth T. Tormey and Eugene J. O'Brien, Copartners Trading under the Firm Name and Style of John J. Tormey & Company, Defendants.
    Second Department,
    April 10, 1914.
    Negligence — injury to pedestrian by truck hired to deliver goods — when driver of truck not servant of defendant.
    Where a pedestrian is injured by the negligent driving of a horse and wagon, which were hired from a truckman by the defendant to deliver goods, the liability of the defendant depends upon whether the contract between the general employer of the driver and the defendant placed the driver under the exclusive direction and control of the defendant as respects the general management of the team, so as to make him the defendant’s servant for the time being.
    Where in an action to recover for death so caused it appeared that the truckman had several clients other than the defendant and at times used the wagons let to the defendant in their business without special permission; that although an employee of the defendant accompanied the driver, he had only authority to tell the driver where to go to make deliveries; that the defendant had no control over the driver, or power to hire or discharge him and did not pay his wages, it must be held as a matter of law that the driver was not the servant of the defendant. This is true although brass plates bearing the name of the defendant were attached to the wagon.
    Appeal by the plaintiff, Paul Hanatsek, as administrator, etc., from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Queens on the 24th day of October, 1913, upon a dismissal of the complaint as to the respondents by direction of the court at the close of plaintiff’s case.
    
      Henry S. Mansfield, for the appellant.
    
      John Ewen, for the respondents.
   Jenks, P. J.:

The action is for the negligent driving of a horse and wagon whereby the plaintiff’s intestate was killed when standing at gaze in a city street. The action was begun against Tormey & Oo., truckmen, and P. K. Wilson & Son, merchants. But Tormey & Oo. adjusted the claim, aqd the case was continued against P. K. Wilson & Son alone. The plaintiff was non-suited at Trial Term and appeals. The question presented is whether the driver, at the time of the accident, was the servant of the truckmen or of the merchants. As the nonsuit was ordered at the close of the plaintiff’s case the question is not presented by any proof adduced by the defendants.

There are many cases in the books. But as each case shows peculiar facts, those decisions are of value only so far as they state the principles and apply them to similar facts; and yet facts that have been regarded as controlling in one case may appear as minor in another case, in that they are weakened, limited, explained or overborne by other facts.

I think that the essential preliminary question in such a case is whether the contract between the. general employer of the driver and the hirer of the vehicle placed the driver under the exclusive direction and control of the latter as to the general management of the team, and thus for the time being the driver was the servant of the hirer, (Kellogg v. Church Charity Foundation, 203 N. Y. 191, and authorities cited; Labatt Mast. & Serv. [2d ed.] 177; Joslin v. Grand Rapids Ice Co., 50 Mich. 516; Oulighan v. Butler, 189 Mass. 287.)

The truckmen were engaged in that business generally. Pour small wagons were used to carry the defendants’ goods, under a contract that gave a preference to the defendants in such use, and in consideration the defendants paid $440 a month to the truckmen. The name of the defendants was placed upon brass plates screwed upon these wagons. At the time of the accident there were packages of the defendants’ goods in the wagon, and a servant of the defendants sat on the seat with the driver. The stand of the truckmen had been in front of the premises occupied, upon the ground floor and basement, by the defendants, but was removed, and thereafter the wagons sometimes stood around the street in front of the premises during the daytime, when they were not “ down the road.” The truckmen kept their wagons and trucks in a stable. The circumstance of the name plate at most was but evidence prima facie against the defendants. (Kellogg v. Church Charity Foundation, supra, 196,199; Smith v. Bailey, L. R. [1891] 2 Q. B. Div. 403; Caston v. Consolidated Plate Glass Co., 26 Ont. App. 63.) It appears that the truckmen had seven “clients” other than the defendants, and used the said four wagons for the business of such clients, without requiring special permission from the defendants. The plaintiff sought but failed to establish that at the time of the accident the load on the wagon was made up exclusively of the goods of the defendants. When the defendants sought delivery for their goods, one of their servants took the packages to the truckmen, who told that servant in which one of the wagons they must be placed, and the servant then went out with that wagon and returned with the receipts for the deliveries made by him. This servant when on the wagon had personal charge of the goods, personally and exclusively made the deliveries, and from time to time directed the driver to the various places for delivery. The driver took no part in the deliveries, was not even furnished with a list of places, and did nothing more than drive according to the said directions. The truck-men were the owners of the horses and wagons and harness, and they hired this driver and paid his monthly wages. The driver was accustomed to report to the truckmen each' morning, and the truckmen gave directions to him to go to the defendants’ place, or as I understand it, elsewhere. None save the truckmen or their employees ever gave any directions to the driver save those described as to the driving from place to place when in carriage of the defendants’ goods. The defendants- had nothing to do with the driver — nothing to do with his selection. The truckmen were free to send out their wagons as they chose, and on many occasions the defendants could not get any wagon from them. This course of business had existed for thirteen years. If the defendants had been at any time dissatisfied with the driver, their course was to complain to the truckmen, who would investigate with the view that the driver was satisfactory both to the truckmen and to the defendants.

It seems to me that the probative force of such circumstances as to the stand and the deliveries is much less than the somewhat similar circumstances detailed in Moore v. Stainton (80 App. Div. 296; affd. on opinion below, 177 N. Y. 581), and that the testimony as to the name upon the wagon is not a material circumstance in this case. There was no control in the defendants over the driver in the management of his team, save the right to direct the driver where to go and when to stop for the delivery, and this was not sufficient to make the driver the servant of the defendants. (Kellogg v. Church Charity Foundation, supra, 197; Little v. Hackett, 116 U. S. 366, 380; Moore v. Stainton, supra; Quinn v. Complete Electric Const. Co., 46 Fed. Rep. 506; Joslin v. Grand Rapids Ice Co., supra.)

I think that his proof, all adduced by the plaintiff, did not present as an issue for the jury the question whether the driver was the servant of the defendants. (Authorities supra; Vasligato v. Yellow Pine Co., 158 App. Div. 551; Weaver v. Jackson, 153 id. 661.)

The judgment should be affirmed, with costs.

Present—Jenks, P. J., Carr, Rich, Stapleton and Putnam, JJ.

Judgment unanimously affirmed, with costs.  