
    James Weaver, Appellant, v. Jacob W. Jackson and Benjamin A. Jackson, Respondents.
    First Department,
    December 6, 1912.
    Master and servant — negligence —when master not liable for injuries to servant caused by negligence of truck driver furnished by third party — erroneous dismissal of complaint.
    In an action for personal injuries sustained by the fall of a heavy case of goods caused by the negligence of the driver of a truck in permitting it to start away from a platform, it appeared that the plaintiff’s master had the exclusive use of the horse and truck, which was furnished by defendants at a fixed rate per week under an agreement that defendants should assume responsibility from the time the goods were delivered to them until they were delivered at their destination. The defendants employed and paid the driver, whom they selected and had the right to discharge. The plaintiff’s master did not interfere in any way with the management of the truck and horse by the driver.
    
      Held, that a dismissal of the complaint upon the theory that the driver of the truck was the servant of the plaintiff’s master was erroneous and a .new trial should be granted.
    Appeal by the plaintiff, James Weaver, from a judgment of the Supreme Court in favor of the defendants, entered in the' office of the clerk of the county of New York on the 29th day of November, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the New York Trial Term.
    
      Walter J. Rosenstein, for the appellant.
    
      E. Clyde Sherwood, for the respondents.
   Scott, J.:

Appeal by plaintiff from a judgment entered upon a dismissal of the complaint at Trial Term.

The action is for damages for injuries caused, as it is said, by the negligence of one Wolf, the driver of a truck belonging to defendants, and who was, as plaintiff contends, the agent and servant of defendants.

That there was sufficient evidence of Wolf’s negligence to take the case to the jury does not appear to be questioned by the respondents. They claim, however, and the trial court so held, that at the time of the accident the said Wolf was the servant of, and in the employ of, the firm of Sternau & Co. The correctness of this holding is the only question we have to consider on this appeal.

The plaintiff was a shipping clerk in the employ of the firm of Sternau & Co., and at the time of the injury was engaged in loading a heavy case of glass upon a truck of - which Wolf was the driver. The truck and horse were the property of defendants, who employed and paid the driver, whom they selected and had the right to discharge.

Sternau & Co. had the exclusive use of the horse and truck. which was furnished by defendant at a fixed weekly rate, under an agreement that defendants should assume the responsibility from the time the goods were delivered to them until they were delivered to their destination. On the morning of the day on which plaintiff was injured, Wolf, the truck driver, had called at the place of business of Stemau & Oo. and had backed his truck up to the delivery platform to permit of the loading of a heavy case of goods. Plaintiff and other employees of Sternau & Co. were engaged in loading the case upon the truck when the latter, in consequence as it is said of Wolf’s negligence, started away from the platform, causing the case to fall and injure plaintiff. The defendants rely upon Howard v. Ludwig (171 N. Y. 507), decided by the Court of Appeals in 1902 by a closely divided court. In that case the plaintiff had been injured by the negligence of the driver of a delivery wagon employed in the business of delivering goods belonging to the firm of Ludwig Bros. It was proven that an express company furnished Ludwig Bros, with a truck, horses and driver for the purpose of making deliveries, for which the express company was paid thirty dollars a week. There was some confusion as to the terms of the contract, which was oral and had been in operation for a number of years. The prevailing opinion stated the rule applicable to the case as follows: “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 the goods, sending the team to Staten Island, or around New York making deliveries, as the exigency of then* business required, then the relation of master and servant was created between them and the driver; and they became liable for his negligent acts.” It is clear that that case is not controlling upon the present, for of the two cases supposed by the Writer of the prevailing opinion, the facts of the principal case correspond much the more closely to the supposed case first stated. As it was, the minority of the court united in a strong dissent written .by the chief judge who quoted the basis of the rule of respondeat superior from the opinion of the Court of Appeals in Maxmilian v. Mayor (62 N. Y. 160),- as follows: “'This rule of respondeat superior is based upon the right which the employer has to select his servants, to discharge them if not competent, or skillful or well behaved, and to direct and control them while in his employ. * * "x" The rule has no application to a case in which this power does not exist.”

The case at bar is not to he distinguished in principle from Kellogg v. Church Charity Foundation (203 N. Y. 191). In that case the defendant owned, controlled and managed a hospital, and in connection with said hospital owned and used an ambulance. When occasion arose for the use of the ambulance a livery stable keeper furnished a horse and driver to propel it. The driver was employed by the livery stable keeper by the week, and when not engaged in driving the ambulance worked around the stable. The injury to the plaintiff resulted from his negligent driving of the ambulance. Of course when driving the ambulance he was subject to the direction of the defendant as to where he was to drive. The court, in a carefully considered opinion, held that the Foundation was not responble for the driver’s negligence, saying, inter alia : “While it is thus clear that when one lets out a vehicle and driver on hire to another, he-does not place the coachman under the control of the hirer except so far as. the destination and stopping places are concerned, and generally the rate of speed at which the vehicle is to be driven, it is equally plain that cases may arise in which there is such active interference by the hirer with the management of the team as to render him responsible for . any negligent injury which may be inflicted upon a stranger by reason of such mismanagement.” There is no suggestion in this case that Sternau & Oo. interfered, in any way with the management of the truck and horse by the driver. The opinion concludes with the following excerpt from the opinion of the Supreme Court of the United States in Standard Oil Company v. Anderson (212 U. S. 216): “The simplest case, and that which was earliest decided, was where horses and a driver were furnished by a liveryman. In such cases the hirei, though he suggests the course of the journey and in a certain sense directs it, still does not become the master of the driver and responsible for his negligence, unless he specifically directs or brings about the negligent act.” The present case falls directly within the principles enunciated in the case last cited and many others which are to the same effect. The driver of the truck was employed and paid by defendants, who alone selected him and had the sole and complete power to discharge him-. So far as concerned the times and places at which deliveries were to be made, the driver undoubtedly was subject to the orders of Sternau & Co., but so far as concerned the handling and management of the horse and truck, he was the defendants’ servant. The distinction is perfectly clear and has frequently been pointed out.

The judgment appealed from should be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event. Order to be settled on notice.  