Kellogg v. Church Charity Foundation of Long Island

Thomas, J.: The question whether the driver was the defendant’s servant was necessarily decided upon the former appeal (128 App. Div. 214), but if it was decided erroneously the error should be corrected at this time. I think that it was decided correctly. When the driver started on the errand, in the course off which the accident happened, lie was invested with the apparent character of the defendant’s servant. The ambulance driven was labeled “St. John’s Hospital;” the driver wore a cap owned and furnished by the hospital, on which the words “ St. John’s Hospital ” appeared. Such were the defendant’s decía [840] rations to the public that the driver was the defendant’s servant, engaged in the defendant’s business, átid clothed with such rights and immunities as. the defendant enjoyed in the use of the streets. This manifestation was an invitation to the public to consider the driver the defendant’s servant, to respect him as such, to grant him by courtesy the latitude that his mission demands in the matter of speedy passage, and to yield him the rights in the street that belonged to a real servant of tiie défendant. Such was the defendant’s presentation of thé driver to the public. The status thus given to the driver did in fact obtain for him privileges and immunities that belonged to-tho defendant. He thereby became the acknowledged sórvant of the defendant abroad on its urgent and merciful errands, and entitled to the right of way allowed to those operating ambulances for their proper purposes. An ambulance in such use may be driven in derogation of .certain usual rules of the road. That does not mean that a stablekeeper in his capacity as such and in furtherance of his business may so drive a vehicle in the form of an ambulance, but that a person engaged in the business of succoring the sick, injured or dying, may transport them facilitated by such jjaramount right. ' The defendant accepts and enjoys the superior right, it subjects the public to its right of transit, but urges that the responsibility of exercising the right may be relegated to the stable-keeper, so that the burden of meeting damagps will fall upon him and not on it. By such contention the stablekeeper lias the right because he is driving an ambulance, and the considerate'exercise of the unusual privilege vested in him. It. is my view that the privilege is extended to the defendant, or others similarly engaged, to be exercised by them in the, expedition of their business, and that such persons are- primarily responsible for the just use of the concession. Even if the present action did not happen in the exercise of this power, it is unimportant. It was one of the privileges which the defendant sent the driver out to use, if occasion required, and manifests his representative capacity. But I am not convinced that it was not the intention of the driver to exercise such privilege when the accident happened. His action leading up to the accident' indicates a perversive and negligent rise of liis privilege. He was driving on the wrong side of the way under an apparent claim of right, and he kept to the wrong side in making the turn, thereby [841] tending to drive the decedent aside. The decedent had the right of way; the driver took if from him. If it-be said that such action was not a use of the privilege of right of way, it may be conceded ; but it was an abuse of that privilege which he hardly would have ventured had he been driving in the stablekeeper’s place, with his common rights in the road unaugmented. ' But it is urged that the privilege is extended to the ambulance, and not to the hospital, and that “ the right of way belongs to the ambulance quoad ambulance and not to its owner.” I assume that this means that the favor is granted to an ambulance in use for the purpose of transporting the sick. . However, I cannot conceive that the privilege is extended to a vehicle, but to one operating the same. So the question would recur, who was operating this vehicle? A stablekeeper might be operating it and so make the privilege run to him. In the present instance, did the privilege accrue to the “ambulance quoad ambulance ? ” Then it ran to the defendant’s ambulance, in the possession of the defendant, in its use, under the control of its doctor engaged in its business, proclaimed to the world in a writing to be its ambulance, driven by a man wearing its cap of authority and announced as its servant. What, now, does the legend on the cap mean ? What would it mean in any other relation of life ? What upon the cap of a porter at an inn, a transportation agent at a depot, a conductor on a car ? The present is a hard case for- the defendant, and a great misfortune for the plaintiff. But if the defendant is liable at all, it must be judged as others would be judged. If an ordinance granted, to transportation wagons some special right in the use of streets, and a given company marked the wagons used with its name, dressed the drivers in its livery and marked its name thereon and sent them on the street to convey passengers, and sent its agent to superintend the business and to command the driver when and where to go, and when to stop, would it in case of a collision be heard to say to a person injured on the street, “ This is my lettered wagon, my inscribed livery, my conductor, my business, but the horses and harness belong .to another and he hires and pays the man who drives them and the liability for the collision attaches only to him ? ” If a railroad company were operating over the tracks of another company, and marked the cars and locomotive with its name, and put its name on the conductor’s [842] cap and jras engaged in carrying its passengers, could it, in case of a collision with a person ■ at a crossing, acquit itself of liability by showing that it hired the engine and the engineer by the trip of another company ? I consider that there could be no such escape in either of the cases supposed. The driver was initially the stable-keeper’s servant.; the defendant obliterated all suggestion of it.; it sent him out disguised as its servant; it stamped him as its man ; it established and proclaimed. him the driver of its ambulance;' it ordered him to do its business; it placed its doctor in command of him; it invited his acceptance by the public as its servant, and should not be permited to relegate the responsibility for his acts to the stablekeeper, remote, unrevealed, and to all appearances disclaimed in the matter; The judgment and order should be affirmed, with costs. Hirschberg, P. J., and Woodward, J., concurred; Rich, J., read for reversal.