
    Annie Muldoon, Appellant, v. The City Fireproofing Company, Respondent.
    First Department,
    November 12, 1909.
    Negligence — injury to pedestrian by vehicle — erroneous nonsuit.
    Action to recover damages for personal injuries caused by a truckman who ran down the plaintiff. Evidence examined, and held, that it was error to dismiss the complaint on the ground that the plaintiff had failed to show that the driver of the truck was in the employ of the defendant at the time of the accident.
    Appeal by the plaintiff, Annie Muldoon, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 1st day of March, 1909, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Hew York Trial Term.
    
      William D. Reed and Charles A. Taussig, for the appellant.
    
      James E. Smith, for the respondent.
   Laughlin, J.:

We are of opinion that the evidence entitled the plaintiff to have the case submitted to the jury.

The action was brought to recover damages for personal injuries sustained by the plaintiff by being struck and knocked down by a horse attached to a truck and run over by the truck at the southwesterly corner of Broadway and One Hundred and Fourth street on the 10th of December, 1903, while she was waiting to board a downtown car which was approaching and had been signaled to stop for her. Ho question is raised but that the evidence was sufficient to take the case to the jury on the question of freedom from negligence on the part of the plaintiff and negligence on the part of the driver of the truck. The case w'as taken from the jury on the theory that it was not shown that the driver of the truck was in the employ of the defendant. The team of horses was owned by one Olavin, who was driving at the time. The truck was heavily laden with fireproofing .material owned by the defendant. It had been loaded at the defendant’s factory at Fifty-first street and Eleventh avenue by employees of the defendant and the material was, by direction of the defendant, being conveyed to the building now known as the Marseille Hotel at the southwesterly corner of Broadway and One Hundred and Third street, which was then being built and was there to be delivered to a contractor on an order from the defendant. The services of Olavin -were not engaged by the defendant directly. It appears that one McKeon, who was originally made a party defendant, but against whom the plaintiff elected to discontinue the action on the trial, was doing carting work for the defendant, and had been off and on, for about twenty years, without any contract other than an agreement to receive three dollars and fifty cents per load for hauling material on long journeys on which only two loads a day could be delivered, or seven dollars per day for a team, truck and driver. It is to be inferred from the evidence, although it does not expressly appear, that Olavin, who was driving the team at the time of the accident, was accustomed to obtain employment from or through McKeon, for he testifies that on the morning of the accident he informed his brother, who was in the employ of McKeon, that he desired to go to work with his team and was informed by his brother that McKeon wanted him and that he was shortly thereafter directed by McKeon to take his truck and go up to the defendant’s factory, which he did, arriving there about eight-thirty o’clock. According to his testimony, nothing was said about his employment when he arrived at the defendant’s factory, but he was at once directed by the foreman to unhitch his team from the truck which he had brought and hitch onto a truck of the defendant which was there already loaded with fireproofing material. After complying with this direction he obtained instructions at the office of the defendant to take the load to One Hundred and Forty-third street and Hamilton place where it was to be used, and was given a ticket to obtain a receipt from the foreman on the delivery of the material at that place. He then hoarded his wagon and canned out the instructions which he received. It seems that he had done similar carting for the defendant, evidently at the instance of McKeon on former occasions. At the place of delivery of the material his instructions were to report to the foreman from whom he received help to unload the truck and he customarily assisted in unloading it. After delivering the material he returned to the defendant’s factory, arriving there at about three o’clock in the afternoon, and found that in the meantime MeKeon’s truck, which he left there in the morning, had been loaded with fireproofing material. He was then directed by the foreman to hitch onto that truck and in like manner he received instructions to deliver the material at One Hundred and Third street and Broadway, the place for which he was destined at the time of the accident. Some time later, the exact time does not appear, the defendant paid seven dollars to McKeon for the delivery of these two truck loads of material, and McKeon, without deduction for commissions or otherwise, delivered the same to Olavin, the driver. McKeon had teams and trucks of his own which he used in carting, but it does not appear whether any of his teams did work for the defendant on the day in question. It does appear that he was not personally at the defendant’s factory on that day. McKeon testified that he had no contract or understanding with the defendant with respect to liability for breakage of the fireproofing material and that the only arrangement he had was that he was hired, as already stated, when defendant wanted carting done. It appears that he was not regularly employed and that at times a week or more would elapse during which he could do no carting for the defendant; he never paid any expenses incident to carting, nor any ferry charges — it does not expressly appear that there ever were any such expenses — and that whenever he hired men not regularly in his employ to do work for the defendant, he always turned over the full pay of three dollars and fifty cents per load or seven dollars per day to them. According to his testimony the only profit he made was on his own teams; and the inference is that at times when necessary he obtained other teams and wagons in order to retain the defendant’s carting business. The undisputed evidence is that McKeon gave no instructions to Clavin or to the other men with respect to their duties, other than directing them to go to the defendant’s factory, and that the only instructions they received were received from the agents and servants of the defendant. It does not appear that they received any instructions from any source with respect to care in driving to avoid breaking the material or with respect to handling it or the route to be followed. The tickets which the drivers received, being receipts for the material delivered, were returned either by them or McKeon to the defendant.

We are of opinion that under the principal test, namely, in whose business was he engaged at the time and under whose orders was he working, or who had authority to give him direction with respect to what he was doing, prescribed by all the cases to determine whose servant an individual is at a particular time, Clavin was in the employ of the defendant, as matter of law. (Howard v. Ludwig, 171 N. Y. 507; Baldwin v. Abraham, Id. 677; Murray v. Dwight, 161 id. 301; Higgins v. Western Union Telegraph Co., 156 id. 75; Wyllie v. Palmer, 137 id. 248; Linnehan v. Rollins, 137 Mass. 125.) He was engaged in its business transporting a truck load of its material to be delivered when, where and as directed. He was not exercising an independent calling. He placed himself, his team and wagon at the disposal of the defendant and the defendant accepted his services and loaded his wagon with such material as it saw fit and directed that it be transported and delivered as it saw fit. If it did not outline the route, there can be no doubt but that it was within its province to do so. The only employment Clavin had according to this record was from the defendant; and-the defendant was at liberty to accept or reject his employment and to discharge him at any time. Apparently the only connection that McKeon had with it was -to secure the employment for Clavin, and although doubtless McKeon’s object was to continue employment for bis own teams and wagons, that did not make him the employer of Clavin. McKeon, according to the evidence, was under no obligation to pay Clavin for his services or for the use of his team. If the defendant liad refused to employ Clavin, he would not, on the record before us, have any cause of action against McKeon, and on the other hand, if Clavin had not been paid or had not authorized McKeon by a course of conduct to receive his pay, there can be no doubt that on this record the defendant would have been liable for his services, not on an express contract probably, but on quantum meruit. Therefore, we are of opinion that the court erred and that a new trial should he granted.

It follows that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, Clarke, Houghton and Scott, JJ., concurred.

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