211 A.D. 236 | N.Y. App. Div. | 1925
.Harold Rushby made an agreement with defendants to sell a Maimón car belonging to them. He was to have for his commission all he could get for the car above $600. He was to have no other compensation and no allowance for expenses. He got the car at Plattsburgh and alone drove it to Mineville, where he was working in a garage. He kept the car in this garage. He lived in Witherbee. One evening he drove from the garage to Witherbee and, while returning to Mineville, the accident happened, the car he was driving coming into collision with plaintiff’s car in the highway. He took this trip for the purpose of selling the car, if an opportunity was presented. At the time the car was the property of the defendants and he was using it under the license and license plates on the car when he got it. The nonsuit was granted on the ground that Rushby was an independent contractor and that the defendants did not assume to, and could not, exercise any control over Rushby in the management of the car.
Rushby was at the time an independent contractor. He took the specific job of selling the car. In carrying out this undertaking he was independent of the orders and control of the defendants as to how, when and where he should proceed in his efforts to sell the car. In these respects he acted entirely under his own control and choice. He was not in then employ and not subject to discharge by them for the manner in which he did his work. (Matter of Litts v. Risley Lumber Co., 224 N. Y. 321; Thorn v. Clark, 188 App. Div. 411; Matter of Rheinwald v. Builders’ Brick & Supply Co., 168 id. 425; 174 id. 935; affd., 223 N. Y. 572.)
Rushby was called by the plaintiff, who thereby vouched for his credibility. Though the ownership of the car is prima facie evidence of responsibility for an accident in the highway, the presumption of responsibility growing therefrom is overcome by the evidence of Rushby to the contrary. (Potts v. Pardee, 220 N. Y. 431, 433; Rose v. Balfe, 223 id. 481, 486.) In Van Blaricom v. Dodgson (220 N. Y. 111) the basis of responsibility is discussed under the relationship of principal and agent between the owner and the driver. In Potts v. Pardee (supra, 434) the court said:
Whether or not the liability of the owner of an automobile for injuries suffered while it is being driven in the highway depends upon the relation of master and servant or of principal and agent between the owner and the driver, in either case it must appear, before the owner can be held liable, that the driver of the car was at the time of the injury under the orders or control, express or implied, of the owner. The ownership of the car is not conclusive, nor is the fact that in some sense it is being driven in the interest of the owner. In the instant case Rushby, at the time of the collision, was his own master in driving tire car.
The recent statute (Laws of 1924, chap. 534, adding to Highway Law, § 282-e) making the owner of an automobile liable for injuries
The judgment should be affirmed.
Judgment and order unanimously affirmed, with costs.