Charles v. . Barrett , 233 N.Y. 127 ( 1922 )

One Steinhauser was in the trucking business. He supplied the Adams Express Company, the defendant, with a motor van and a chauffeur at the rate of $2 an hour. The defendant did the work of loading at its station and unloading at the railroad terminal. It sealed the van at the point of departure and unsealed at the point of destination. Between departure and destination, the truck remained without interference or supervision in charge of the chauffeur. While so engaged, it struck and killed the plaintiff's son. Negligence is not disputed. The question is whether the defendant shall answer for the wrong. The trial judge ruled as a matter of law that it must; the Appellate Division, holding the contrary, dismissed the complaint.

We think that truck and driver were in the service of the general employer. There was no such change of masters as would relieve Steinhauser of liability if the driver of the van had broken the seals, and stolen the contents. By the same token, there was no such change as to relieve of liability for other torts committed in the conduct of the enterprise. Where to go and when might be determined for the driver by the commands of the defendant. The duty of going carefully, for the safety of the van as well as for that of wayfarers, remained a duty to the master at whose hands he had received possession. Neither the contract nor its performance shows a change of control so radical as to disturb that duty or its incidence. The plaintiff refers to precedents which may not unreasonably be interpreted as pointing in a different direction. Minute analysis will show that distinguishing features are not lacking. Thus, in Hartell v.Simonson Son Co. (218 N.Y. 345) the special employer used his own truck. The submission to a new "sovereign" was more intimate and general (Driscoll v. Towle, 181 Mass. 416, 418). We do not say that in every case the line of division has been accurately drawn. The principle declared by the decisions remains unquestioned. At most the application is corrected. The rule now is that as long as the employee is furthering the business of his general employer by the service rendered to another, there will be no inference of a new relation unless command has been surrendered, and no inference of its surrender from the mere fact of its division (McNamara v. Leipzig, 227 N.Y. 291; Matterof Schweitzer v. Thompson Norris Co., 229 N.Y. 97; Meade v. Motor Haulage Co., Inc., 233 N.Y. ___; Driscoll v.Towle, supra).

The judgment should be affirmed with costs.

HISCOCK, Ch. J., POUND, McLAUGHLIN, CRANE and ANDREWS, JJ., concur; HOGAN, J., not voting.

Judgment affirmed.