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First Department, June, 1921.

[Vol. 197 of the defendant directed it where to go to get and to transport the defendant's goods. Under such circumstances, there can be no doubt but what the driver of the car, Moses, at the time of the accident, was the servant of Steinhauser, and that the defendant was not liable for the negligence of said driver. At the time of the accident the driver was upon the business of his employer, Steinhauser, engaged in earning the two dollars an hour which the company agreed to pay Steinhauser for the transportation of its goods by means of his truck. No claim was made upon the trial nor upon this appeal that the defendant had any voice in the selection of the chauffeur, and it was powerless to discharge him. Under such circumstances it cannot be reasonably claimed that Moses was the servant of the express company at the time of the accident. Nor can it be said that Moses, a servant in the general employ of Steinhauser, was at the time a special servant of the express company, and that the latter is to be held liable for his negligence. In Maxmilian v. Mayor (62 N. Y. 160) it was said: "This rule of respondeat superior is based upon the right which the employer has to select his servants, to discharge them if not competent, or skillful or well behaved, and to direct and control them while in his employ. (Kelly v. The Mayor, 11 N. Y. 432.) The rule has no application to a case in which this power does not exist. (Blake v. Ferris, 5 N. Y. 48.) İt results from the rule being thus based, that there can be but one superior at the same time and in relation to the same transaction."

The rule as to when a hirer can be said to have control of the servant is stated in Shearman & Redfield on Negligence (Vol. 1 [6th ed.], § 162) as follows: "The hirer cannot properly be said to have control of the servants, unless he has the right to discharge them and employ others in their places in case of their misconduct or incompetency; that being the only practicable means by which free servants can be controlled. If, therefore, the hirer has no such power, he is not responsible to anyone for the faults of the servants."

Nothing appears in the contract between Steinhauser and Peterson, representing the defendant company, giving to the defendant any control over the driver of the truck, and, so far as the evidence discloses, the relationship of the parties

First Department, June, 1921.

App. Div. 584] as it originally existed at the time the arrangement was made was at no time changed during the course of defendant's hiring of the truck to transport its goods. The owner of the car, Steinhauser, was an independent contractor and undertook to transport goods for the defendant in consideration of the payment of two dollars an hour for the use of his car in such transportation. As between the express company and Steinhauser the contract was purely one of service. Moses, the driver of the car, was merely carrying out the arrangement made by his employer, Steinhauser, with the defendant. The case of McNamara v. Leipzig (227 N. Y. 291) seems to be a controlling authority upon the facts in the case at bar. In that case the court said: "The performance of the agreement had been entered upon and was being carried out at the time of the accident. In the performance the defendant exercised no control in the selection of the chauffeur, or over him, his wages or the car, other than to direct him when and where to come with the car for the defendant and where to transport him. The car when not in the use of the defendant was kept in the garage of the company, was there cared for and supplied with the necessaries by the company, and there the chauffeur received calls of the defendant for the use of the car and the chauffeur. In the matters of coming to and leaving the defendant and of taking him to the places directed by him the chauffeur was under his directions."

The court held that the defendant in that case was not liable, but that the garage company was responsible for the negligence of its chauffeur. The court further said: "The relation of principal and agent obviously did not exist. The liability of the defendant depends on the doctrine of the liability of a master for the acts of his servant done in the course of his employment. The relation of master and servant is created by contract, express or implied. Of the elements which may constitute it, those that the servant must, in the course of the employment, be doing the work of the master under the will, direction and control of the master throughout all the details of the work, are essential. * A servant lent or let by his master to another does not become the servant of the other because the other directs what work is to be done, or in what way it is to be done. If the

*

First Department, June, 1921.

[Vol. 197 servant remains subject to the general orders of the person who hires and pays him he is still his servant, although specific directions may be given him by the other from time to time as to the work to be done. The other person has the right to exercise the degree of control of the servant essential to secure the fulfillment of the agreement between the master and himself."

In Hartell v. Simonson & Son Co. (218 N. Y. 345) the Court of Appeals, at page 349, said: "A servant in the general employment of one person, who is temporarily loaned to another person 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." (Italics are the writer's.)

In conclusion, the Court of Appeals said, in McNamara v. Leipzig (supra): "In the present case the written agreement defines the relation and liabilities of the parties. It gave for a consideration to the defendant the use, at demand, of the automobile and a chauffeur to operate and run it for a certain period. The company possessed, managed, cared for and supplied the automobile and selected, employed and controlled the chauffeur who operated the car for it. The extent of the defendant's control was to direct the chauffeur when and where to come with the automobile, where to go and where to stop. In obeying those directions the chauffeur was carrying out the company's work under the agreement. The defendant had no authority, management or care over the automobile or as to the manner in which it should be treated or driven. The chauffeur did the company's business in his own way and the orders given him by the defendant merely stated to him the work which the company had arranged to do."

The above language seems to me to be pertinent to the conceded facts in the case at bar. Here we have the renting of the use of the truck by Steinhauser to the defendant Adams Express Company. For a consideration of two dollars an hour the express company was to have the use when it wished of the truck and a chauffeur to drive it. Steinhauser, the

App. Div. 584]

First Department, June, 1921.

owner, owned, managed, cared for and supplied the truck, and selected, employed and controlled the driver who operated it. The only control of the defendant was to direct where the truck was to go and when in the performance of the contract which it had with the owner. In following the defendant's instructions the driver of the car was merely performing the work of his employer under his arrangement with the defendant. That the driver, Moses, was at the time of the accident in the employ of Steinhauser and not of the defendant, appellant, is, I think, sustained by the decisions in Kellogg v. Church Charity Foundation (203 N. Y. 191); Driscoll v. Towle (181 Mass. 416); Baker v. Allen & Arnink Auto Renting Co. (231 N. Y. 8), and Weaver v. Jackson (153 App. Div. 661), and many other decisions holding that under the circumstances existing in the case at bar the owner of the car and not the hirer is responsible for the negligence of his servant, the driver. The respondent relies upon the decision of this court in Braxton v. Mendelson (190 App. Div. 278). That case is clearly distinguishable from the case at bar. In the Braxton case the defendant, the owner of the truck, had leased it with others under a yearly contract with a dairy company to furnish trucks to work by the day for such company; the company had full charge of the trucks; the truck in question was kept at the hirer's plant and was taken out every evening and returned to the same place every night, and was at all times exclusively in the control and possession of the hirer, save only when repairs were required upon it, when it was temporarily returned to the owner; the driver of the car was assigned to the hirer's organization, and it was necessary for him to become a member of the Milk Drivers' Union in order to drive the car for the hirer; the chauffeur received his orders solely from the hirer, and had no dealings with his original employer, aside from receiving his wages and authority with reference to repairs upon the car; whereas, in the case at bar, the driver of the truck remained under the control at all times of the owner of the car, from whom he received directions each day where, in the performance of the owner's contract with the express company, he was to proceed for work; each day the car was returned to the owner's garage, and APP. DIV. - VOL. CXCVII.

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First Department, June, 1921.

[Vol. 197 each morning the driver obtained his directions directly from the owner as to where his services were required. While, as before stated, in carrying out his master's contract with the express company, he received directions from the express company from time to time during the day, where they desired their goods to be taken, such directions in no manner involved the services of the driver to the express company, but were merely to direct where the express company's goods were to be taken pursuant to its contract with the owner of the car.

I am, therefore, of the opinion that at the time of the accident the defendant, appellant, was not responsible for the negligence of the driver of the car, and that, therefore, the said defendant's motion for dismissal of the complaint should have been granted.

If this be so, there is no necessity for considering the other grounds upon which the defendant asks for a reversal of the judgment, namely, as to whether plaintiff's intestate left dependent relatives who were entitled to the compensation awarded by the verdict of the jury for the death of the intestate. The judgment and order appealed from should be reversed, with costs, and plaintiff's complaint dismissed, with costs.

CLARKE, P. J., LAUGHLIN, SMITH and PAGE, JJ., concur.

Judgment and order reversed, with costs, and complaint dismissed, with costs.

ARNOLD C. HANSEN, Appellant, v. GRIGORI BENENSON, Respondent.

First Department, June 3, 1921.

Depositions examination of plaintiff before trial - examination denied where plaintiff bound to prove all matters on which defendant can examine examination denied as to counterclaim where issue not joined thereon.

In an action to recover upon a quantum meruit a balance alleged to be due for personal services claimed to have been performed by the plaintiff for the delendant, in which the defendant interposed a counterclaim to which the plaintiff demurred, an application by the defendant before the demurrer to the counterclaim was disposed of and issue joined thereon

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