The inquiry which the court was commanded to answer at the close of the testimony was: Whose servant was he? — this driver whose carelessness occasioned the injury to this plaintiff. Was he the servant of these defendants or of the University Express Co.? This was necessarily the inquiry, because, in order to render one liable for the negligence of another, the relation of master and servant or principal and agent must exist. (Stevens v. Armstrong, 6 N.Y. 435; King v. N.Y.C. H.R.R.R. Co.,66 N.Y. 181; McInerney v. D. H.C. Co., 151 N.Y. 411. There is no pretense that the relation of principal and agent existed, and hence it was only possible to charge these defendants with the misconduct of the driver by establishing that the relation of master and servant existed between them.
A proper consideration of the evidence bearing upon that question can only be had by keeping in mind the legal reason for charging a master with responsibility for the negligent or wrongful acts of his servant. It is that the master has the privilege and responsibility of selecting, disciplining and removing his employees, and the interests of society require that he shall exercise care in the selection of servants, the character of whose service makes it possible that their careless acts may result in injury to others. *Page 512
The reason found expression in Maxmilian v. Mayor, etc., ofN.Y. (62 N.Y. 160) in these words: "This rule of respondeatsuperior is based upon the right which the employer has to select his servants, to discharge them if not competent, or skillful, or well-behaved, and to direct and control them while in his employ. The rule has no application to a case where this power does not exist."
It being the law, then, that the master is responsible for the misconduct of his servant because he had the power to select a more careful man in the first instance, or failed to discharge him when he could or should have discovered his lack of care and caution in the discharge of his duties, it would necessarily seem to follow that the test by which it is to be determined whether the relation of master and servant exists between two persons is a very simple one, namely: Did the alleged master employ and pay the servant, and could he have discharged him from the work prior to the happening of the accident? Now, if the evidence shows conclusively that an alleged master could have done no one of these things, it must be declared that he was not the master in law, for, as is said in Shearman Redfield on Negligence (§ 160): "He is to be deemed the master who has the supreme choice, control and direction of the servant, and whose will the servant represents, not merely in the ultimate result of his work, but in all its details."
This brings us to an examination of the record for the purpose of ascertaining whether, applying the test I have suggested, there is any evidence tending to support a finding of fact that the driver of this truck wagon was in the employ of these defendants.
When plaintiff rested her case she had proved that upon this truck wagon there was painted the firm name and address. This evidence was, of course, quite sufficient to establish primafacie that the horses and wagon were the property of defendants and that the driver was in their employ, and, hence, the court properly refused to grant the defendants' motion for a nonsuit at the close of plaintiff's case.
When, however, the testimony was closed, a very different *Page 513 situation was presented. The prima facie case had then been dissipated by undisputed evidence, which neither the court nor the jury had a right to disregard, by which it was conclusively established that defendants did not own the truck or horses and did not employ the driver or pay him. These facts were established by the testimony of defendants and five other and disinterested witnesses, two of them ex-employees of defendants, who had retired from business, the third, the driver, who worked no longer either for defendants or the express company, and the other two, the partners constituting the express company, whose interests were hostile to those of defendants, for their testimony proved beyond a question that the express company was the employer of the driver. This testimony established the following facts:
The University Express Co. employed the driver and owned the truck and horses which were carrying certain of defendants' goods at the time the accident occurred, and they owned other trucks engaged in the general express business and not used by defendants. The defendants had many similar trucks, but not as many as they required at times, and so they made an arrangement with the express company to furnish a truck, driver and helper, to deliver their goods on Staten Island at the rate of $30 per week. The express company undertook to be responsible for the safe delivery of goods intrusted to them, for lost or damaged parcels and for cash collections for goods delivered. The compensation was a fixed one, independent of the amount of work, and when all the time of the driver and truck was not employed in delivering defendants' parcels the express company used them for business not connected with defendants'. The same driver was not always used, the expressmen sending whom they pleased, and the driver in this particular case was sent to other firms for whom his employers did transportation work. It was established, therefore, that defendants did not employ the driver, did not pay him and could not discharge him. The express company had the right to discharge that driver at will, to send him or some one else in his place on any day, for the express company *Page 514 and not the defendants were responsible for losses which occurred in the delivery of goods, just as other express companies are liable, in the absence of special agreement. So the right of selection of employees necessarily rested with the express company, and was exercised by them.
With such facts established by undisputed evidence given by disinterested witnesses, there was no possible basis upon which the jury could rest a finding that this driver was the servant of these defendants, and, hence, there was no question which the court could submit to the jury, and an attempt to submit such a question was without legal authority.
It would seem as if authorities were not needed to support a proposition that if a man hires out his horses and wagon and driver to another for a special purpose for a day, or a week, or a month, the driver does not cease to be his employee and become the employee of the hirer, any more than the horses and wagon cease to be his and become the property of the hirer, and that if an express company undertakes to do some or all of the business of a large establishment at a given price per parcel, or at an agreed sum per week, or month, its employees do not cease by operation of law to be its employees upon commencement of the work, and become the employees of the hirer, when the express company still pays them, and continues responsible for their care of the hirer's goods, with authority to discharge them at will.
But plain as the proposition is it is not without authority for its support. Shearman Redfield on Negligence (§ 102) states the rule as follows: "The master who hires out one of his servants to work for another person is liable to the hirer for such servant's negligence in the work, and this even if the particular servant was selected by the hirer himself, and unless the master abandons the entire control of the servant to the hirer, he remains liable to a stranger for their negligence. The hirer cannot properly besaid to have control of the servants unless he has the right todischarge them and employ others in their places, in case oftheir misconduct or incapacity, that being the only practicalmeans by which free *Page 515 servants can be controlled. If, therefore, the hirer has no such power he is not responsible to any one for the faults of the servants."
This principle has been recently applied in this court inMurray v. Dwight (161 N.Y. 301). In that case the plaintiff had been sent by his employer with a horse to assist defendant in hoisting goods, the horse to supply the power and be managed by the plaintiff. The work was done upon the premises of the defendant, and with apparatus belonging to him, and during the course of it the plaintiff was injured by the negligence of one of the defendant's employes; and it was held that the plaintiff did not become in any legal sense the servant of the defendant, and in the course of the opinion the court took occasion to distinguish all of the cases in this court relied upon by the appellant in the case at bar, namely, Wyllie v. Palmer (137 N.Y. 248); McInerney v. D. H.C. Co. (151 N.Y. 411), andHiggins v. W.U. Tel. Co. (156 N.Y. 75), and nothing further need be added in that direction.
It is true that the defendants' counsel omitted to except to that portion of the charge of the court in which it is said, "If, however, they agreed to furnish Ludwig Brothers an outfit of truck, men and horses to be employed by Ludwig Brothers in their deliveries, then they [meaning Ludwig Brothers] are liable." But the failure to take an exception did not make that feature of the charge the law of the case to such an extent as to deprive defendants of the benefit of their exception taken to a refusal to nonsuit on the ground, distinctly made, that the case was barren of testimony tending to show that the driver was a servant of defendants. And as it does not correctly state the law applicable to the situation at the close of all the testimony, as I have already attempted to show, it becomes unnecessary to comment upon it.
I advise a reversal of the judgment and the granting of a new trial.
BARTLETT, MARTIN and VANN, JJ., concur with HAIGHT, J.; GRAY and O'BRIEN, JJ., concur with PARKER, Ch. J.
Judgment affirmed. *Page 516