
    Patrick Cunningham, Appellant, v. The Syracuse Improvement Company, Respondent.
    
      Negligence—a teamster, while rendering, by direction of his master, services to a third person, injured by the negligence of the latter’s servant — no action lies against the third person —fellow-servants.
    
    A teamster in the general employment of. A. was directed by A. to perform such work as might be required of him by B., by whose foreman he was specifically instructed as to the manner in which he was to load stone upon his wagon from a boat. While employed in so doing, he was struck by a stone and injured through the negligence of a servant of B. engaged in the work of loading the stone upon the wagon.
    In an action brought by the teamster against B. to recover for the injury thus received, it was held that B. was the toaster of the-teamster and also of the servant through whose negligence he was injured, they being co-servants in ■ the same common employment, and that, therefore, the action could not be maintained.
    . Appeal by the plaintiff, Patrick Cunningham, from a judgment of the Supreme Court in favor.of -the defendant, entered in. the office of the clerk of the county of Onondaga on the 17th day of .February, 1897, upon the dismissal of his complaint by direction of 'the court after a trial at the Onondaga Trial Term.
    The plaintiff was a teamster in the employ .and pay of one John W. Gee. On the l-3th of August, 1895, Gee agreed with the defendant to furnish it a team, wagon and man to haul stone, for three dollars and fifty cents per day, and he thereupon directed plaintiff to take a team and perform whatever work was required of him by the defendant.
    In obedience to these instructions the plaintiff, on the following morning, went with his team to the canal, near what is known as the “ wide waters,” in the city of Syracuse, at which place a boat .loaded with stone was moored to the bank. N
    He reached the' canal at about half-past- six o’clock,, and waited “ until the boss and his man. came.” At seven' o’clock the “ boss ” stationed his men, called to the plaintiff to drive forward, told him where to place his wagon, and directed him to help load stone thereon. He also instructed him as to the number of stones to draw at a time, and as to the proper method of placing them on his wagon. The plaintiff followed the instructions thus given and proceeded to load his wagon, ,
    The stones were swung from the boat on to the wagon by means of a derrick, and, while the plaintiff was occupied in placing them in proper position, one of the defendant’s servants negligently permitted a large stone to be swung toward the wagon without any warning to the plaintiff, in consequence of which the latter was hit- and quite severely in jured. It is to recover damages foi’ the injury thus received that this -action is sought to be maintained.
    
      
      Walter N. Magee for the appellant.
    
      W. S. Andrews, for the respondent.
   Adams, J.:

At the close of the plaintiff’s evidence a nonsuit was directed by the learned trial court, upon the ground that the injury of which the plaintiff complains was inflicted by the negligence of a fellow-servant, and the determination thus reached presents the sole question which this court is called upon to review.

It is, of course, not to be denied that at the time of the accident the plaintiff and the person whose negligence caused his injury were engaged in a common occupation. But it is insisted, nevertheless, that they were in no legal sense co-servants, for the reason that they were not in the employ of the same master. And if this contention is well founded, it is needless to say that the direction which was given to the case at the trial was unwarranted. For it must be assumed for the purpose of this review that the person in charge of the derrick was negligent, and as the relation of master and servant existed between him and the defendant, it necessarily follows that the latter was liable for the negligence of the former, unless he and the plaintiff were fellow-servants.

It must be our endeavor, therefore, to determine whether the position assumed by the defendant is tenable in the face of the undisputed facts of the case; and in making this attempt it is of primary importance to find some test by which the plaintiff’s relation to the defendant can be definitely ascertained.

It is well settled that, in order to establish the relation of- master and servant, it is necessary that the employer shall not only, select the workman, but that he shall also possess the right to direct him in the performance of his work as well as to discharge him for. incompetency or misconduct. (Butler v. Townsend, 126 N. Y. 105-108.) ■

When the relation is thus established the doctrine of respondeat superior applies, as between the master and third parties. And this doctrine is founded upon the power which the master has the right, and is bound to, exercise over the acts of his subordinates for the prevention of accidents. (Blake v. Ferris, 5 N. Y. 48-53.)

We think it is quite apparent, therefore, that the real test of relationship -is, first, employment; and, second,, power and control over the person employed. Or, as it has. been tersely stated by a text writer of recognized ability : “In all such cases-the question is whether at the i/kne of the injury the servant was subject to "the 'master’s control.” '■ (Wood on Mast. & Serv. § 424.)

Subjecting then the facts of the ease in hand to an. application of this test, we find that the element, of power or control is pretty conclusively established ;• for it is undisputed that the plaintiff, while ■ engaged, in drawing stone for the defendant, was under the absolute control of the latter; that'he received directions from the defendant’s foreman as to where he should station his wagon while it was being loaded, as to the manner of loading the stone and where to unload the same, and that he obeyed these instructions. In all these respects, therefore, he occupied precisely the same- relation • towards the- defendant as did the other workmen who were associated with him. But it is urged that there is still lacking the element of employment which is essential to the creation of the relation of master and servant, and in one sénsó this contention is true. For unquestionably- at the time of the accident Cunningham was, generally speaking, in the- employ of Gee* and was working only temporarily for the defendant by permission of his general employer. - But did this circumstance affect Cunningham’s relation towards his fellow-íáborers ? that is,-as to them, did it constitute him a stranger instead of a co-servant %

' In order to obtain a satisfactory solution of this question, it must be borne' in mind that the principle invoked by the defendant, and which has thus far been applied to this case, is one which has. secured recognition in this country for more than, half a century. (Murray v. R. R. Co., 1 McMull. [S. C.] 385 ; Farwell v. Boston & Worcester R. R. Co., 4 Metc. [Mass.] 49.)

Briefly stated, this principle is, that when a. person accepts ■employment in a business in' which others aré engaged with him, 'there is an implied’ agreement upon his part- to assume all" the ordinary risks attending- such business, including accident's which result from the carelessness of his co-employees; and the foundation upon which it rests is unity of service and 'control.

In a case,, therefore, where unity of service and control is found to exist, the natural deduction would appear to be that, if a person is injured by the carelessness of another, and at the time of the accident they are both subject to the orders and control of a common master, they are co-servants as to the particular employment' in which they are engaged, although one of them may at the same time ' happen to be in the general service of a third party; or, to state the" proposition . more concisely, a person who is temporarily employed while in the general service of another, must be treated as to that particular employment as the servant of the person thus employing him ; and the person who has the right to direct and control his conduct in that particular business must, likewise, be regarded as his master, for it is quite clear that the existence of the general relation of master and servant does not exclude a like relation between the servant and a third party to the extent of the special service in-which the servant may be actually engaged.

The rule as thus stated has long been recognized and adopted in Massachusetts. In the case of Kimball v. Cushman (103 Mass. 194) it was deemed applicable as to liability to a stranger' for the negligence of -one employed in a special service; and in the more recent cases of Johnson v. City of Boston (118 Mass. 114); Hasty v. Sears (157 id. 123); Morgan v. Smith (159 id. 570), and Coughlan v. Cambridge (166 id. 268), it was applied where, as in the present case, the general employer had temporarily loaned his servant to another for some particular purpose.

In this State the decisions upon this question appear to be somewhat conflicting. In a comparatively early case it was held by the General Term of the fourth department, that where a servant was loaned by his general employer to a third party for some special service, and, while engaged in the performance thereof, carelessly drove into and injured the wagon of a stranger, the general and not the special employer was liable. (Michael v. Stanton, 3 Hun, 462.) And in the more recent case of Murray v. Dwight (15 App. Div. 241; 44 N. Y. Snpp. 234) the Appellate Division in the third department, in reviewing some of the authorities to which we have adverted, as well as several leading English cases in volving the same question, lays much stress upon the fact that in the case which it was considering, a horse was -loaned by the general employer with his servant, and seems to regard this, fact as calling for the application of a different rule from the one which would obtain-if the servant had only been loaned. Why this should be so, especially in a case where the servant and not a stranger is the party injured, we must confess our inability to understand. But, as the decision in ■the case last cited appears to rest mainly upon the fact that the accident to which the plaintiff attributed his injury did not occur-during the course of his actual employment, what is said in the prevailing opinion as regards the question here under consideration may perhaps be treated as obiter.

But however this may be, we think that the Court of Appeals, in at least two instances, has very clearly indicated the rule which should govern in cases of this character. (Wyllie v. Palmer, 137 N. Y. 248; McInerney v. D. & H. C. Co., 151 id. 411.)

. In the case first cited the defendant sold a quantity of fireworks to a committee of the citizens of the city of Auburn, and at the time fixed upon for their exhibition sent a man and a boy. to Auburn to assist the Committee in managing the display. The expenses of these-two persons were paid by the committee, under whose direction and control they acted while.in Auburn. A rocket which was discharged by the boy struck and injured one of the plaintiffs, and, in an action against the general employer to recover damages for such injury, it was held that 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.”

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 liad the right and did actually assume to control his- conduct. For any misconduct or inability to perform ■ the service required of him, the defendant could undoubtedly have discharged him and returned him to his general employer. ' The defendant was, therefore,, at that time the plaintiff’s master, and, as he was also the master of the person whose negligence caused the injury, it follows that this person and the plaintiff were co-servants in the same common employment, and that no action lies against the defendant for the injury sustained by the plaintiff. (Rozelle v. Rose, 3 App. Div. 132.) The judgment appealed from should, therefore, be affirmed.

All concurred.

Judgment and order affirmed, with costs.  