119 N.Y.S. 320 | N.Y. App. Div. | 1909
We are of opinion that the evidence entitled the plaintiff to have the case submitted to the jury.
We are of opinion that under the principal test, namely, in whose business was he engaged at the time and under whose orders was he working, or who had authority to give him direction with respect to what he was doing, prescribed by all the cases to determine whose servant an individual is at a particular time, Clavin was in the employ of the defendant, as matter of law. (Howard v. Ludwig, 171 N. Y. 507; Baldwin v. Abraham, Id. 677; Murray v. Dwight, 161 id. 301; Higgins v. Western Union Telegraph Co., 156 id. 75; Wyllie v. Palmer, 137 id. 248; Linnehan v. Rollins, 137 Mass. 125.) He was engaged in its business transporting a truck load of its material to be delivered when, where and as directed. He was not exercising an independent calling. He placed himself, his team and wagon at the disposal of the defendant and the defendant accepted his services and loaded his wagon with such material as it saw fit and directed that it be transported and delivered as it saw fit. If it did not outline the route, there can be no doubt but that it was within its province to do so. The only employment Clavin had according to this record was from the defendant; and-the defendant was at liberty to accept or reject his employment and to discharge him at any time. Apparently the only connection that McKeon had with it was -to secure the employment for Clavin,
It follows that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.
Ingraham, Clarke, Houghton and Scott, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.