Miller v. North Hudson Contracting Co.

Howard, J.: The defendant hired teams for its work from one Brockley. Brockley not having teams enough of his own to supply the defendant, hired a team from Gates. The plaintiff was the driver of Gates’ team. While working on the defendant’s job and driving Gates’ team the plaintiff was injured, so he alleges, by reason of the defendant’s negligence. At the time of the accident the movements of the plaintiff were being directed by the defendant’s foreman, who had exclusive control and authority over the plaintiff while he remained on the job. We shall not review the merits of the case, for we believe the verdict to be supported by the evidence. One question arises, however, which demands consideration. Was the defendant an employer of the plaintiff within the meaning of the Labor Law ? Literally, of course, the defendant did not employ the plaintiff. But in attempting to “extend and regulate the liability of employers,” as the title of the act says, and to confer additional benefits and protection upon the employee, did the Employers’ Liability Law have in mind the relation created by the mere contract of hiring, or the broad, general relation created when the laborer enters the plant of another where the “ ways, works or machinery ” exist, and there subjects himself to the authority of some person intrusted by the owner of the plant with the duty of “ superintendence ’’ and with “ authority to direct, control or command ? ” Clearly it was the latter. One of the purposes of the law is to guard against the negligence of persons intrusted with superintendence and authority. Guard whom ? Guard all those who are permitted to work in the plant. In great enterprises there are undoubtedly many instances where laborers are supplied to the master indirectly, as the plaintiff was here. Are all such persons outside the pale of the Labor Law ? To hold this would be to open an avenue for the complete subversion of the Employers’ Liability Law, now incorporated in the Labor Law. (See Laws of 1902, chap. 600; now Consol. Laws, chap. 31 [Laws of 1909, chap. 36], art. 14, as amd. by Laws of 1910, chap. 352.) By having their laborers employed and paid by a third party and sent to them through such third party, employers could thus escape all liability. Such an evasion was not con [350] templated by the Legislature. It cannot be tolerated by the courts. Our conclusion is upheld by the general principle that a person who is employed and paid by one person may, nevertheless, under certain circumstances and for a particular transaction, become the servant of another. This principle is well established by authority. In Coughlan v. Cambridge (166 Mass. 268, 277) it was said: “It is well settled that one who is the general servant of another may be lent or hired by his master to another for some special service, so as to become as to that service the servant of such third party. The test is whether, in the particular service which he is engaged to perform, he continues liable to the direction and control of his master or becomes subject to that of the party to whom he is lent or hired.” In Wyllie v. Palmer (137 N. Y. 248) Judge O’Brien, writing the opinion, said: “ The master is the person in whose business he [the servant] is engaged at the time and who has the right to control and direct his conduct.” In Shearman and Redfield on Negligence (6th ed. p. 390) we find this language: “Servants who are employed and paid by one person, may, nevertheless be, ad hoc, the servants of another in a particular transaction, and that, too, where their general employer is interested in the work.” In Standard Oil Co. v. Anderson (212 U. S. 215) the court said-: ‘ ‘ It sometimes happens that one wishes a certain work to be done for his benefit and neither has persons in his employ who can do it nor is willing to take such persons into his general service. He may then enter into an agreement with another. If that other furnishes him with men to do the work and places them under his exclusive control in the performance of it, those men become pro. hac vice the servants of him to whom they are furnished.” Within the principles above propounded the plaintiff was, beyond any doubt, the servant of . the defendant, and, within the same principles, as well as within the spirit and intent of the original Employers’ Liability Law, he was the employee of the defendant. The judgment and order appealed from should be affirmed. All concurred, except Woodward, J., dissenting, in opinion.