98 N.J.L. 493 | N.J. | 1923
Lead Opinion
The Gray Burial and Cremation Company of Cranford, in this state, like many undertaking establishments, conducted a livery business in which it let-automobiles out for hire. The defendants, Caseys, were undertakers in business at Plainfield, and hired one of the Gray automobiles, with a driver, to go from Plainfield to a cemetery in Brooklyn, where an interment was to he made under the Caseys’ direction. John F. Casey sat upon the front seat with the driver, but gave no directions and exercised no control over the machine, except to state generally to the driver the cemetery objective of the funeral. The ferriage fares over the Hudson were paid by the driver, and the entire control and modus operandi of the machine was under the direction and management of the Gray driver.
At an intersection at Canal street and the Bowery, in New York City, near the entrance to the Manhattan bridge, the automobile was stopped by a traffic officer in order to allow pedestrians to cross the street. Among the belated pedestrians was this plaintiff, who, after the signal to cross had been given, was struck by the automobile in question and seriously injured. The suit was brought to recover damages for his injuries.
The case against the Gray company was decided in its favor by tire court upon a motion to nonsuit. The case against the Caseys was allowed to go to the jury under the court’s charges that the Caseys were the employers of the driver of the machine, who thus became their servant, and upon the doctrine of respondeat superior the Caseys were made liable by the jury’s verdict for the driver’s negligence.
The learned trial court based his legal view as to the Caseys’ liability upon the well known ease of Cuff v. Newark and New York Railroad Co., 35 N. J. L. 17. Affirmed by this court in the same volume at page 574. But obviously he misconstrued both the rationale and the tenor of that determination. While the case discusses in an elaborate opinion by Justice Depue the incidental and somewhat cognate relationship of master and servant, the essential question
More than ten years thereafter, the question at bar was distinctly presented in an opinion by the same learned justice, in this court, in the case of N. Y., L. E. & W. R. R. Co. v. Steinbrenner, 47 N. J. L. 161. There the plaintiff hired the coach and driver to take the plaintiff and his family to an adjacent resort, to do which it was necessary to cross the defendant’s railroad; and the essential question presented was whether the alleged contributory negligence by the driver could be attributed to the plaintiff upon the theory of the doctrine of master and servant. At that period of the development of this department of the law, the case of Thorogood v. Bryan, 8 C. B. 114, sustained the proposition that 'the passenger in a public conveyance by reason of his power and opportunity of “selection” had “identified” himself with the owner and his servants, so that in the language of one of the judges, “he must be considered a party to it.” This court refused to follow that doctrine, and it was therein expressly repudiated. The wisdom of that repudiation has since been
In the Steinbrenner case, the elements of hiring, control, direction and power of. dismissal are made distinct ratio decidendi, and present the fundamental tests of the liability of the occupant and hirer of the coach, under the legal status test of master and servant.
The flight of time has served to firmly imbed this doctrine in our jurisprudence. Fundamentally, as we have, demonstrated in subsequent cases, the theory of master and servant, like that of principal and agent, is based upon the legal conception of representation in a chosen and accepted line of service, by which the employe practically becomes, for that particular duty, the alter égo of the master. It becomes manifest, therefore, that the vicarious responsibility of a third party for injury resulting from the negligent act of another can be legally or logically supported upon no other recognized conception. An enumeration of the cases will serve the purpose of elucidating the principle. Rodenburg v. Clinton Garage Co., 84 N. J. L. 545; Holler v. Ross, 68 Id. 324; Doran v. Thomsen, 76 Id. 754; Missell v. Hayes, 86 Id. 348; Jennings v. Okin, 88 Id. 659; Cronecker v. Hall, 92 Id. 450; Mann v. Max, 93 Id. 191; Karas v. Burns Bros., 94 Id. 59; Zampella v. Fitzhenry, 97 Id. 517.
Tested, therefore, by this principle, it is manifest from the undisputed facts in the record, that the defendants, Caseys, neither hired, directed nor controlled the driver; nor did they exercise over him power, authority or supervision, more than to impart to him, as was done in the Steinbrenner case, the particular purpose and object of his employment, leaving to him the exclusive management, itinerary direction and control of the vehicle, which factors, as we have observed, present the substantial inquiries and determinative tests for ascertaining the existence of the legal relationship' of master and servant, and consequent liability thereunder.
In considering the liability of the defendants, Caseys, the Gray company has intervened by briefs to- support the judgment. The legal effect of the direction of the court in the Gray case, as a matter of procedure, is not distinctly before us upon this appeal. That inquiry may be determined hereafter upon a subsequent presentation of the question by the plaintiff, as a distinct issue.
The judgment appealed from wall be reversed.
Concurrence Opinion
(concurring). I concur in all except the last paragraph of the foregoing opinion. That paragraph seems to me to have no application to the present case. Of course, a servant cannot he deprived, under the fellow-servant doctrine, of his right to sue for personal injuries, on the ground that he had by the contract or act of his master become the servant of a new master (also the master of the alleged fellow-servant), in the‘absence of evidence that he had assented, ex
Dissenting Opinion
(dissenting). The prevailing opinion mistakenly assumes that the Gray Burial and Cremation Company. conducted a livery business, whereas the fact clearly appears to be that it was engaged in the undertaking business. Prom aught that the record reveals the letting out of the hearse and limousine with drivers, by the Gray Burial and
It is to he observed that Casey, Jr., did not ask the Gray company, in terms, for the hire of a hearse but asked it, “if wie could have his hearse’’ for a funeral. The fair inference from this language, in conjunction with that which preceded it is that the Gray company possessed a single automobile hearse which the Caseys wanted to borrow, temporarily, together with its driver, for their use in their business. It is further inferable that the Caseys were induced to apply to the Gray company for the reason, that as an undertaker, it had charge of funerals, which took its hearse to the Holy Cross cemetery, and hence its driver was presumed to he familiar with the road.
But it does not seem to me to he a matter of vital importance whether or not the Gray burial company, as is assumed by the prevailing opinion, did let out its hearse and limousine to other undertakers who applied to the company for the use of the same, so far as the question presented here is concerned, which question seems to he whether under the terms of the contract made by the Gray company with the Caseys the driver of the hearse continued under the control and direction of the Gray' burial company, while performing this particular work for the Caseys, or was under the direction and control of the latter — the Caseys who were in charge of and conducting the funeral, so as to make them liable for an act of negligence of the driver, who while driving the hearse along the public highway on
To this view I cannot assent. The cases cited are not applicable to the undisputed facts of the present case.
The case of Delaware, Lackawanna & Western Railroad Co. v. Hardy, 59 N. J. L. 35, affirmed by this court, same volume, 563, deals directly with the legal principles applicable to the facts under discussion. In the Hardy case (at p. 37), Magie, J. said: “A general servant of one person ma}', for a "particular work, or a particular occasion, become, pro hac vice, the servant of another person. What will suffice to prove the assumption of the dual service gives rise to question. I think the applicable rule is admirably expressed by Lord Watson thus: “I can well conceive that the general servant of A. might, by working towards a eomimon end along with the servants of B. and submitting himself to the control and orders of B., become, pro hac vice, B.’s servant in such sense as not only to disable him from recovering from B. for injuries sustained through the fault of B.’s proper servants, but to exclude the liability of A. for injury occasioned by his fault to B.’s own workmen. In order to produce that result the circumstances must be such as to show conclusively that the servant submitted himself to the control of another person than his proper master, and either expressly or impliedly consented to accept that other person as his master for the purpose of the common employment.” Johnson v. Lindsay, 1891 App. Cas. 371. “To establish the fact that the servant of one has thus transferred his services to another, pro hac vice, it must appear that he has assented, expressly or •impliedly, to such transfer. No one could transfer the services of his servant to another master without the servant’s consent. It must further appear that the servant has, in fact,
So, in Hartell v. T. H. Simonson & Son Co. (Court of Appeals), 218 N. Y. 345; 113 N. E. Rep. 255, Cuddeback, J., in a well-considered, opinion (at p. 349), says: “The piineiples of law which control in this class of cases are quite well settled. 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.” The Gray burial company was not an independent contractor who had agreed to do the work — that is, to bury the deceased, but what it did was to loan its automobile hearse and limousine and drivers thereof to the Caseys so that the latter could have the facilities for doing the work which they had agreed to do for the family of the deceased. The fact that the Caseys paid the Gray burial company for the hire of these facilities is of no material consequence under the undisputed facts of this case. ISTor can it be properly said that the driver of the hearse did not consent to have his sendees transferred to the Caseys for that particular service — that is, to drive the hearse at the funeral, for. as was said in the Hardy case, that the assent of the servant to the transfer may he implied from the circumstances, and it does not appear that there was any dissent, but, on the contrary, it does appear that the driver put himself willingly under the direction and control of the Caseys in the conducting of the funeral. I say control and direction because it is undenied that the Caseys had sole control of the funeral arrangements and of the funeral cortege to the ceme
In the Hartell Case, supra, the court referred to Schmedes v. Deffaa, 214 N. Y. 675; 108 N. Y. Rep. 1107, and further says: “On the other hand, in Schmedes v. Deffaa, supra, a livery stable keeper who had an order from an undertaker to furnish carriages for a funeral, not having sufficient number of carriages of his own, applied to another liveryman for an additional carriage and driver. The second liveryman sent a carriage and driver as requested. That clearly was a case where the first liveryman procured additional facilities for doing his own work, and it was held in this court that he was liable for the driver’s negligence.”
This case seems to be on all fours with the case before us. The Caseys had no automobile equipment and they wanted to go a long distance, and in order to facilitate their work they procured the automobile hearse and limousine with their drivers from the Gray burial company, who had no interest whatever in the conduct of the funeral.
Shear. & Redf. Neg. (6th ed.) 390, says: “Servants who are employed and paid by one person may nevertheless be ad hoc, the servant of another in a particular transaction, and that, too, where the general employer is interested in the worlc.”
The funeral was under the control and management of Caseys, the undertakers. It was not essential in order to incur liability that they should have given orders and directions to the drivers. The fact that they had the control and
The same doctrine is enunciated in Standard Oil v. Anderson, by Sir. Justice Moody, in speaking for the United States Supreme Court (212 U. S. 215, at pp. 219, 221 in 53 Law Ed.). And on marginal page 222, the learned judge says the inquiry is “whose is the work being performed, a question which is usually answered by ascertaining who has the power to control and direct the servants in the performance of their work.”
Much reliance is placed in the prevailing opinion upon the Steinbrenner case, but a mere recitation of its facts will demonstrate how widely and essentially they differ from those of the present case.
In the Steinbrenner case, the plaintiff was riding, with his four nieces, in a coach owned by one Merkins, and driven by a driver who was employed by Merkins. The coach and horses and driver were hired by the plaintiff for Merkins for the journey in the course of which the coach wias struck by a passing train and the plaintiff was injured, and in an action by him against the railroad company it was: held that the negligence of the driver could not he imputed to the plaintiff, since the former was not a servant of the latter hut of Merkins.
A sound public policy, however, requires that where a •wrongful act was done by a servant or agent in the course of his employment and while on his master’s business, to the injury of a third person, such wrongful act shall be attributed to the master or principal, who shall be answerable therefor.
. The practical soundness and salutariness of this public policy is being constantly exemplified in our daily affairs. Taxi-cab companies and livery companies send out their vehicles with drivers to traverse the public streets and to serve any of -the public, for hire and to carry a passenger to such place or places as he may indicate. Now while there is an element of master and servant between the passenger and driver, it is only an incident arising out of the general employment of the driver who is engaged on the general business of his master and employed to do the very thing he was doing when serving and folio-wing the directions of the passenger.
The theory of the relation of master and servant., existing between passenger and driver, must give way to the broad public policy that the driver, in obeying the directions given him on the journey by the passenger, is performing the duties
To have held otherwise would be equivalent to sanctioning a theory that on each occasion of hiring, the driver became the servant of the hirer to the extent that the former represented the latter and thereby the general employer was relieved from liability for his driver’s negligent acts. The viciousness of such a doctrine becomes apparent when it is considered that it would often lead to grave injustice to persons injured through the negligence of drivers of these vehicles in that an impecunious passenger would be the defendant in place of the general employer.
But a different situation presents itself where a livery company, who has demand upon it beyond its capacity for vehicles, with drivers, sends to another livery company for a supply, and obtains and uses them. While it is true that the contract of the general employment existing between the lender of the vehicles, with servants, and such servants remain unimpaired, as to their relative rights springing out of the contract of employment, nevertheless such act cf hiring, if not objected to by the servants whose services are to go with the vehicles, would in effect be a transfer of their services, with their implied consent, to the borrower for the occasion for which the borrowed equipment was to he used. In such a posture of affairs the borrower, by accepting the services of the borrowed servants for the occasion, takes them with their vices as well as their virtues, and, -upon principle, becomes answerable for their negligence.
In the Hardy case, supra, the question was, as. to whether Hardy, who was injured by the negligence of a servant of the railroad company, he being a servant of the Passaic Rolling Mills Company which was employed to furnish material and skilled workmen to build a certain railroad bridge, under the direction of engineers of the raiiroad company (and among the servants furnished was Hardy, who it appears was in
That case surely does not countervail the well settled rule 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 question here was not whether the driver of the hearse was a fellow-servant of the drivers of other vehicles in the funeral cortege, if there were any, but whether in the particular sendee the driver of the hearse was the servant of the Caseys so as to render them liable to the plaintiff for the injuries which he received as a result of the negligence of the driver of the hearse in the performance of such special service. I think they were liable, because when the hearse with a driver and a limousine with a driver were transferred to the Caseys, they were the sole persons exclusively invested with the power of control and direction of the hired servants' in the performance of the special service required of them, for the benefit of the Caseys.
Moreover, it does not seem to me to be consonant with sound reason or good policy, that an undertaker in charge and control of a funeral may absolve himself from liability, for the negligence of servants who are engaged in performing a special service for him and for his benefit, upon the plea that the equipment including servants were hired of another.
For the reasons given I vote to affirm the judgment.
For affirmance — Kalis ch, Black, JJ. 2.
For reversal — The Chancellor, Chief Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Katzenbach, White, Heppenheimer, Gardner, Ackerson, Van Bus-kirk, JJ. 13,