67 N.Y.S. 1095 | N.Y. App. Div. | 1901
The plaintiff recovered judgment for injuries sustained by collision on a public highway with a wagon which the complaint alleges was at the time owned or controlled and used by the defendants, and managed by their servant in the course of their business. The main question presented on the appeal relates to the liability of the defendants for the negligent acts of the driver.
The defendants were engaged in the furniture business, and the wagon was used at the time of the accident in the delivery of their goods to purchasers on Staten Island. Their firm name and place of business was on the truck, but the truck and horses were owned by a firm of truckmen, Albersmeier & Bickert, doing business under the name of the University Express Company, and the driver was in the general employment of such firm. The' arrangement under which the firm of truckmen furnished the horses, wagon and driver to the defendants was oral and had been in operation a number of years, but no definite evidence was given as to the terms of the contract, excepting that for the sum of thirty dollars a week, Albersmeier & Bickert furnished the defendants with a truck, horses and driver for the purpose of delivering goods sold by them to their Staten Island customers. The driver reported every morning with the truck and horses at the defendant’s place of business, received a list of the deliveries from defendants’ shipping clerk, loaded the goods upon the wagon, and after the work was done returned to Albersmeier & Bickert’s stable. There was considerable evidence given as to o£her conditions of the contract, but they were very evidently conclusions of the witnesses rather than statements of fact. It did clearly appear, however, that there was no engagement one
I am satisfied from the evidence that the contract required Albersmeier & Bickert to furnish the wagon, horses and driver to the . defendants in order to enable the latter to make the deliveries in question, and that they were actually placed under the control of the defendants for that purpose. Although the driver was not hired or paid by them, and they could not have discharged him from his general employment, yet he was their servant at the time of -the accident in a sense and degree which served to render them liable for his negligence under the doctrine of respondeat superior. Although the driver was employed generally in the express -business, he was by virtue of the contract between his employers and the defendants actually engaged at the time of the collision in the furniture business, and was occupied in delivering furniture as a part of and pursuant to the defendants’ contracts' of sale. It may be conceded that the defendants could make a contract for the delivery of their goods by express in such a way that no liability on their part would result because of negligence in the course of trans- ■ portation, but the mere general hiring at so much a week of horse, wagon and driver with which to do the work is not necessarily such a contract. The. learned trial justice submitted the question of the nature of the contract to the jury to decide upon all the evidence whether the arrangement was one by which Albersmeier & Bickert undertook themselves to make the defendants’ deliveries, or by which they furnished the defendants with an outfit to be employed by the latter in making the deliveries. - The verdict must be assumed to be based upon a finding upon this question adverse to the contention of the defendants. The liability of the defendants is well settled upon principle and by authority, and the cases relating to the question have been recently considered by* this court in the case of Baldwin v. Abraham (57 App. Div. 67).
The application of the principles established by these decisions is
A detailed discussion of the exceptions is unnecessary. Hone of them, even if well taken, would affect the result.
The judgment and order should be affirmed.
All concurred, except Goodrich, P. J., dissenting, and Sewell, J., taking no part.
Judgment and order affirmed, with costs.