Schmedes v. Deffaa , 138 N.Y.S. 931 ( 1912 )

Scott, J.:

The plaintiff in the first above-entitled action sues for damages for personal injuries resulting, as she alleges, from the negligence of the driver of a carriage. The only question to be considered upon this appeal is whether such driver was the servant of defendant in such a sense as to render the defendant liable for the driver’s negligence under the doctrine of respondeat superior.

The defendant is the keeper of a livery stable. On April 25, 1909, he had received an order from one August Herlich, an undertaker, to furnish a number of carriages, horses and drivers to attend funerals.- Defendant had not sufficient carriages of his own to fill the order, and he thereupon applied to another livery stable keeper named Naughton for an additional carriage. Naughton sent one of his drivers, with a carriage and horses, with orders to report to defendant and take his orders. When the driver reported defendant sent him to Herlich, the undertaker, who in turn directed him to go to the house where the funeral was to be, and then to proceed with the funeral party to the cemetery. It was while the carriage was on one of the East river bridges on the way to the cemetery that the accident occurred. It was stipulated at the trial that the horses, carriage and driver came from Naughton, and the evidence showed that all defendant had to do with them was to hire them from Naughton and immediately let them to Herlich. Except as the driver had been directed to go where defendant ordered, the latter had no control over the driver and no authority to employ or discharge him.

We have recently had occasion to consider the application of the rule of respondeat superior with reference to accidents resulting from the negligent operation of hired vehicles. (Weaver v. Jackson, 153 App. Div. 661.) In that case we took occasion to quote from Maxmilian v. Mayor (62 N. Y. 160) the following: “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. * * * The rule has no application to a case in which this power does not exist,” and also the following from the Supreme Court of the United States in Standard Oil Company v. Anderson (212 U. S. 215): c‘The simplest case, and that which was earliest decided, was where horses and a driver were furnished by a liveryman. In such cases the hirer, though he suggests the course of the journey and in a certain sense directs it, still does not become the master of the driver and responsible for his negligence, unless he specifically directs or brings about the negligent act.” Tested by these rules, it is quite apparent that the defendant was not the master of the driver and responsible for his negligence in the management of the vehicle. The cases of Howard v. Ludwig (57 App. Div. 94; affd., 171 N. Y. 507) and Baldwin v. Abraham (57 App. Div. 67; affd., 171 N. Y. 677) are quite different in their facts from the case presented here. It is true that in each of those cases the defendants had hired horses, wagons and drivers, but they had used them continuously and exclusively in their business for considerable periods of time, and had exercised such control and direction over them as to raise a question of fact whether they had not assumed ad hoc the relation of master to the drivers. In Gorney v. City of New York (102 App. Div. 259) the negligent act charged to the driver of a hired ash cart was that he left his horse standing unhitched in a public street. This act was the result of a requirement of the hirer that he should go into a building to make a report, and for this the employer was held to be liable.

Kellogg v. Church Charity Foundation (203 N. Y. 191) might be authority for plaintiff if the action were against Naughton, the owner'of the horses and carriage, and the master of the driver, but is not an authority as against the present defendant, who acted merely as a middleman in the transaction, and who was neither the master of the driver nor the one who directed his movements after he had reported to the undertaker.

The judgments should be afñrinéd, with costs.

Ifgraham, P. J., and Clarke, J., concurred; Laughlih and Miller, JJ., dissented.