McNamara v. Leipzig

Shearn, J.: This action was brought to recover damages for the death of plaintiff’s intestate, a boy eight years old, who was struck and killed through the negligence of the chauffeur of an automobile in which the defendant Leipzig was riding. The main controversy is concerning the liability of the defendant for the negligence of the chauffeur. The defendant did not own the automobile, but had hired it and the services of the chauffeur from the Concord Garage Company for a period of three months under a written contract. The contract, after reciting that the defendant “ is desirous of hiring from the party of the second part a Stearns, 1911 Model automobile and services of a chauffeur, for a period of three months, * * * at a monthly rental of Three hundred Dollars,” provided that “ The party of the second part [the garage company] agrees to and with the party of the first part [the defendant Leipzig], to rent to the party of the first part from the 12th day of July, 1915, up to and including the 11th day of October, 1915, a Stearns, 1911 Model automobile which is to be used by the party of the first part during said period at any hour of the day or night that the said party of the first part desires to use same. It is further agreed between the parties hereto that the party of the second part is to engage and furnish to the party of the first part, a chauffeur to operate and run said automobile during the period heretofore mentioned at its own cost and expense.” The garage company agreed “ to pay all expenses for gasoline used in propelling said automobile, together with any and all expenses for repairs or supplies used in said automobile.” The defendant agreed “ to pay for the use of the aforesaid automobile and services of a chauffeur during the period heretofore mentioned, the sum of Three Hundred Dollars per month.” The garage company agreed to “ procure insurance covering the party of the first part from any and — 517 — all liability by reason of accidents, injuries of any kind or from any cause whatsoever.” It was not the regular business of the garage company to hire out cars in this manner, but this particular car had been left with the garage company for that purpose. After making the contract the garage company, through its president, Holmes, hired a chauffeur who was then placed under the orders of defendant. Holmes testified: “ Q. And then did you tell him where to go? A. I just told Mr. Leipzig’s address. That was all. Q. And what else did you say to him? A. Nothing else. Q. Did you tell him to drive Mr. Leipzig? A. Certainly I did, yes, sir. Q. And did you tell him how often he should drive Mr. Leipzig? A. No. Q. Did he know when he should drive him? A. I guess he did. I guess he got his orders from Mr. Leipzig.” No directions were given by the garage company to the chauffeur after the hiring. Holmes testified: “ Q. After you had that initial conversation with the chauffeur did you have any more conversations with him at all? * * * A. Not at all. Q. Not at all? A. That is all.” After about six weeks the first chauffeur resigned and the garage company engaged the chauffeur Duffy, - who was driving the automobile at the time of the accident. Duffy testified that he drove no other car during the period of the contract and that he was, when hired by the garage company, put under the defendant’s orders. With reference to the instructions given to him when engaged by Holmes, the president of the garage company, Duffy testified: “He just told me Mr. Leipzig had the car rented monthly, by the month, and that I was to drive it and follow Mr. Leipzig’s orders, whatever orders Mr. Leipzig gave me.” From that time on Duffy did what defendant told him to do, reported to him daily at the time fixed by the defendant, took the. automobile back to the garage whenever the defendant directed and received instructions from the defendant, each day, when to report the following day. Defendant paid for the chauffeur’s luncheon whenever it was necessary for the chauffeur to be out with the automobile at luncheon time and paid for some one to watch the automobile when it was necessary for the chauffeur to leave it unattended. The defendant — 518 — was the only one who issued any orders to Duffy. On the day of the accident, when defendant had directed Duffy to take him home from City Island, he directed Duffy specifically to drive across One Hundred and Thirty-fifth street, although Duffy, if' left to take the course which in his judgment was the better, would have taken the crossing at One Hundred and Forty-ninth street. The accident happened at One Hundred and Thirty-fourth street and Madison avenue. The basis of the defendant’s liability is, of course, that although the chauffeur was in the general employment of the garage company, the evidence shows that he had become, pro hac vice, the servant of the defendant. That a sufficient foundation was laid for holding the defendant on this well-established basis of liability seems perfectly clear under a long line of authorities, among which may be mentioned Hartell v. Simonson & Son Co. (218 N. Y. 345); Schmedes v. Deffaa (214 id. 675); Standard Oil Co. v. Anderson (212 U. S. 215, 220-222); and Howard v. Ludwig (171 N. Y. 507). In Hartell v. Simonson & Son Co. (supra) the general employer sent a driver with a team of horses to the defendant in that case, with instructions to take such orders as were given to him by defendant, and after the day’s work to come back to the stable. The defendant could not discharge the driver, and paid him no wages. The court held that the defendant in th,at case was liable for the acts of the driver, stating: “A servant in the general employment of one person, who is temporarily loaned to another pérson to do the latter’s work, becomes, for the time being, the servant of the borrower, who is liable for his negligence. But if the general employer enters into a contract to do the work of another, as an independent contractor, his servants do not become the servants of the person with whom he thus contracts, and the latter is not liable for their negligence. * * * In the case under consideration, Durr, the truckman, did not stand in the relation of an independent contractor to the defendant. He did not undertake to deliver lumber for the defendant. He simply furnished a team and driver to enable the defendant to do its own work. The case is the same as if the defendant had bought a team and hired a driver to aid in its business. It is not very material, so far as the defend — 519 — ant’s liability is concerned, how it came by the instrumentalities with which it carried on its lumber business.” Here, as in the Hartell case, it cannot be said that the garage company assumed the relation of an independent contractor for the defendant. Paraphrasing the language of the opinion just quoted, the garage company did not undertake to transport the defendant from one point to another, but simply furnished an automobile and chauffeur to enable the defendant to ride from place to place as he saw fit, and during the period of the contract to exercise full control over the automobile and chauffeur. It is contended that the case is within the rule applied in Kellogg v. Church Charity Foundation (203 N. Y. 191) and apparently that, if there is any conflict between that case and the Hartell and Schmedes cases, the rule in the Kellogg case is more logical and the better one to follow. I can see no conflict between those cases and no controlling similarity between the case at bar and the Kellogg case. The facts in the Kellogg case are too familiar to justify restatement, but it will be recollected that the decision rested upon the uncontradicted evidence that the driver of the ambulance at the time of the accident was subject primarily to the control of his general employer, that such control was never in any way abandoned or surrendered to the defendant, and that the arrangement between the general employer and the defendant was that the general employer, who kept a livery stable, would furnish a horse to draw the ambulance and a man to drive it upon such special occasions as the defendant might indicate. Here the general employer rented and turned over to the defendant for a period of three months an automobile and the services of a chauffeur, had and exercised no control over either the automobile or the chauffeur during the period of the contract, instructed the chauffeur to take his orders from the defendant, and the defendant not only gave the chauffeur all of his orders, as he had a right to do under his contract, but actually interfered with the operation of the automobile by substituting his judgment for that of the chauffeur as to the route to be taken on the very occasion of the accident. It is said that if the defendant is hable in this case, there — 520 — is no reason, in principle, why one who hires a taxicab for a particular journey should not be liable for an accident happening on the way. Of course, we know that there would be no liability whatever in the latter case, unless the passenger interfered with and assumed to control the actual management of the vehicle. We also know that in numerous cases analogous to the one at bar liability has been uniformly enforced. Of course the test is not the period of the hiring, whether for an hour, a day or three months. The test is whose work is being done and who, during the course of that work, has or exercises control over the doing of that work. Where the relation between the general employer and the party sought to be held is that of independent contractor the general employer is liable. It is his work that is being done by the employee when the general employer agrees to transport a passenger or the goods of another from one specified place to another. Such would be the case where a garage company agreed to transport a man from his residence to his place of business every morning and back again at night. Such would be the case in any contract whereby the general employer bound himself to perform specified services for another. In all such cases the servant is engaged in the business of his general employer. A radically different situation arises when, instead of the general employer undertaking to perform specified services for another, he turns over and rents out both the instrumentality of service and the services of the necessary employee to be used by another in the other’s own business or for his own purposes and under such circumstances as naturally and necessarily deprive the general employer both of the right and the opportunity to control and direct the employee and vest that control and direction in another. Each case will have to be separately examined in the light of its peculiar facts, but in every case the determining factor will be whose work was being done and who. had and exercised control over the employee in doing that work. In the case at bar, as above pointed out, the evidence shows that there was no relation of independent contractor between the general employer of the chauffeur and the defendant and that the chauffeur was doing the defendant’s work under his immediate direction and control. — 521 — It is contended that the judgment should be reversed for alleged error in admitting in evidence the policy of insurance issued to the defendant, reliance being had on Simpson v. Foundation Co. (201 N. Y. 479). This is not a case where the evidence was unwarrantably dragged in in order to influence the amount of the jury’s verdict and create an atmosphere prejudicial to the defendant, as in the Simpson case. It was the defendant who brought out the fact that casualty insurance had been provided for and, if the contract were lived up to, had been procured, for the defendant introduced in evidence the contract for the hiring of the automobile, clause 6 of which expressly provided that the garage company should procure such insurance for the defendant. The matter came into the case naturally, on cross-examination of the defendant, in the course of an attempt on the part of the plaintiff to impeach the credibility of the defendant by showing that the defendant had kept and retained a rebate on the policy which should have gone to the garage company. Further, if prejudice entered into the amount of the jury’s verdict because of this, the result was effectually nullified by the trial court’s action in reducing the verdict from $7,500 to $2,500. The judgment and order should be affirmed, with costs. Smith and Page, JJ., concurred; Clarke, P. J., and Scott, J., dissented.'