Howard v. . Ludwig

Haight, J. This action was brought to recover damages for a personal injury alleged to have been occasioned through the negligence of the defendants. On the 12th day of August, 1897, the plaintiff, while driving in her surrey on the Finger Board road in the county of Bichmond, in company with her children and others, received the injuries complained of as the result of a collision with a heavily loaded truck. An issue wás raised as to the negligence of the driver of the truck, which was sharply contested at the trial, but this- was determined by the jury, in favor of the plaintiff, and no question of law arises upon this branch of the case for our review. The chief question brought up for consideration on this appeal relates to the contention of the defendants, that the driver of the truck was not their servant or in their *509 employ. Upon this issue the defendants asked for a dismissal of the complaint, when the plaintiff rested, upon the ground that there was no proof of any liability on the part * of the defendants, and again at the conclusion of the testimony, at which time the court was asked to direct the jury that the contract proved was simply to deliver the goods of the defendants. These motions were denied and an exception to each request was' taken. In submitting the case to the jury the court charged : “ How, the test of whether these defendants are liable or not will be this: If these express people agreed with Ludwig Brothers to transport and deliver their Staten Island sales, then the expressmen are the transporters and deliverers. If they agreed to transport and deliver the defendant,Staten Island sales then Ludwig Brothers are not liable. If," however, they agreed to furnish Ludwig Brothers an outfit of truck, men and horses to be employed by Ludwig Brothers in their deliveries, then they are liable. * * * In the one case the work is being done by the expressmen and, therefore, they are the masters of the driver. In the other case the work is being done by Ludwig Brothers and they are the masters.” FTo exception appears to have been taken to this portion of the charge and we must, therefore, assume that it correctly states the law so far as this case is concerned. The questions, therefore, raised for our determination arise upon the motions for a nonsuit and for a direction of a verdict at the end of the case, to which we have already called attention. ■ It appears that the defendants were dealers in furniture at 34 and 36 West Fourteenth street in the city of Few York as copartners, under the name of Ludwig Brothers, and that they made sales of their goods throughout the city and surrounding country, including Staten Island in the county of Richmond. It also appears that a man by the name of Albersmyer and another by the name of Bickart were engaged in the trucking business under the name of the University Express Company, and as such owned the truck and horses and employed the driver who caused the accident. The arrange *510 ment between the truckmen and the defendants appears to rest in some confusion. It was oral and liad been in operation a number of years. The truckmen furnished the defendants each day with a truck, horses and driver, for the purpose of delivering goods sold by them to their Staten Island customers, and for this the truckmen were paid by the defendants thirty dollars a week. The defendant Ludwig testified with much distinctness that the agreement was that the truckmen should deliver alb of the defendants’ Staten Island sales for thirty dollars a week, whether great or small in amount, and that for every truck used by the defendants for their deliveries in the city of N ew York they should pay five dollars per day. The testimony of Ludwig is corroborated to some extent by that of Sclioolhouse, who also states that it was the understanding that in case a package was lost the truckmen should be responsible for it. The truckman Bickart, while conceding that they were to furnish the defendants with a team, truck and man for their Staten Island deliveries at thirty dollars per week, testified that in case they had no deliveries to make upon the island, the defendants used the man, truck and team for their New York deliveries without additional compensation to them. The testimony of Albersmyer and of the driver throws but little light upon the question of the difference between these witnesses. It further appears that there was painted upon the truck generally used in the delivery of their Staten Island goods the name of “ Ludwig Brothers,” and that the defendants paid the ferriage on the trucks going from New York to the island each day. 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 *511 goods, sending the team to Staten Island or around Hew York making deliveries, as the exigency of their business required, then the relation of master and servant was created between them and the driver, and they became liable for his negligent acts. Our examination of the testimony bearing upon this branch of the case has led us to conclude that a question of fact arose which it was necessary for the jury to determine, and that, therefore, the trial court committed no error in submitting the case to the jury. We have examined the exceptions but find none which calls for a reversal. The judgment should be affirmed, with costs.