On the 6th of June, 1918 plaintiff's intestate was run over by an auto truck and sustained injuries which resulted in his death. Thereafter this action was brought on the ground that his death was due to the negligence of the defendants. There have been two trials. At the first, at the close of the evidence, the complaint was dismissed as to the Motor Truck Renting Corporation and Hagerty Motor Trucking Company, and submitted to the jury as to Rodgers Hagerty. A verdict was rendered against it for a substantial amount. It appealed to the Appellate Division. Plaintiff also appealed from the judgment dismissing the complaint as to the Hagerty Motor Trucking Company, but did not appeal from the judgment dismissing the complaint as to the Motor Truck Renting Corporation. The Appellate Division reversed both judgments and directed a new trial. The second trial resulted in a verdict against Rodgers Hagerty and in favor of the Hagerty Motor Trucking Company. The verdict against Rodgers Hagerty was set aside by the trial court and the complaint dismissed. An appeal was taken by the plaintiff to the Appellate Division, which unanimously affirmed the dismissal of the complaint as to Rodgers Hagerty, but reversed the judgment in favor of the Hagerty Motor Trucking Company and directed *Page 39 a new trial. By permission, the plaintiff appeals to this court from the order of the Appellate Division affirming the judgment of the trial court dismissing the complaint as to Rodgers Hagerty. The Hagerty Motor Trucking Company also appeals from the order of the Appellate Division reversing the judgment in its favor, giving the usual stipulation for judgment absolute.
The facts are substantially as follows: The Turner Construction Company had a contract with the United States government for the erection of an army supply base in the borough of Brooklyn. It sublet to Rodgers Hagerty the excavation work. Rodgers Hagerty had a contract with the Hagerty Motor Trucking Company to furnish the trucks necessary to remove the material excavated, for which it paid $30 per day of ten hours. During the progress of the work a larger number of motor trucks was required than the Hagerty Motor Trucking Company had. It, therefore, had to go into the market and hire other trucks, and among which it hired several from the Motor Truck Renting Corporation. It was one of its trucks, operated by a chauffeur by the name of Delehanty, which ran over plaintiff's intestate. It is not claimed but what Delehanty's negligence was the sole cause of the accident.
The question presented, therefore, is who is responsible for his negligent act. The answer depends upon whose servant he was at the time. I am of the opinion that he was the servant of the Motor Truck Renting Corporation. It owned the truck and was the general employer of Delehanty. It paid, and alone could discharge him. It was doing a general trucking business and at the time of the accident he was furthering its business, and the fact that the work he was doing was for Rodgers Hagerty did not change that relation. Under the arrangement which it had with the Hagerty Motor Trucking Company it was to receive for each truck $27.50 per day of ten hours. The price thus paid included chauffeur, *Page 40 gasoline, maintenance and upkeep. The only direction received by the Motor Truck Renting Corporation from the Hagerty Motor Trucking Company was to have their trucks report at a certain gate, where the excavation was being made. The chauffeur of a truck on reaching the place designated, would be furnished by a representative of Rodgers Hagerty with a badge on which appeared "R. H., Inc.," a truck number, which was attached to the radiator of the truck, directions as to the route, and the disposition of the load. Without the badge and number the truck could not be loaded. Delehanty was furnished with such badge and number, and after the truck was loaded, was directed where to take it. It does not appear that the Hagerty Motor Trucking Company had any authority over trucks or chauffeurs obtained from the Motor Truck Renting Corporation, except if unsatisfactory it could remove them from that work. Rodgers Hagerty could also, for a similar reason, remove them from the work. The Motor Truck Renting Corporation was paid by Rodgers Hagerty's checks, drawn to its order, but delivered to it by the Hagerty Motor Trucking Company. All that the Hagerty Motor Trucking Company did, so far as the truck driven by Delehanty was concerned, was to hire the truck, tell the Motor Truck Renting Corporation where to have the chauffeur report, and see that it was paid the price agreed upon. The truck, at the time of the accident, was doing no work for the Hagerty Motor Trucking Company other than enabling it to carry out the contract to furnish necessary trucks for Rodgers Hagerty. Under such circumstances, it seems to me that the general employer, and it alone, is responsible for the negligence of Delehanty.
I am well aware that the authorities on this subject, especially in this state, are somewhat in conflict. This court, recognizing that fact, recently undertook to harmonize them by stating a general rule to be applied: "That as long as the employee is furthering the business *Page 41 of his general employer by the service rendered to another, there will be no inference of a new relation, unless command has been surrendered, and no inference of its surrender from the mere fact of its division." (Charles v. Barrett, 233 N.Y. 127; Meade v. Motor Haulage Co., Inc., 233 N.Y. 527.) Applying this rule it seems to me the conclusion stated necessarily follows. (See, also, McNamara v. Leipzig, 227 N.Y. 291; Matter ofSchweitzer v. Thompson Norris Co., 229 N.Y. 97.)
Braxton v. Mendelson (233 N.Y. 122) does not lay down a different rule, nor do I think it an authority for holding that the Hagerty Motor Trucking Company is liable in the present case. There was an agreement in that case between a milk company and the defendant, engaged in the trucking business, by which the latter contracted to do all the trucking for the milk company. It was to furnish the trucks, chauffeurs, gasoline, and protect goods in transit, do the loading and be liable for the shortage of all goods and breakage; in other words, the defendant assumed entire charge of the milk company's trucking, and for that purpose was an independent contractor. In the present case, the Hagerty Motor Trucking Company did not agree to do any work. Its agreement was to furnish trucks at a stipulated price.
I am of the opinion that the order of the Appellate Division affirming the judgment dismissing the complaint as to Rodgers Hagerty should be affirmed, with costs, and the order of the Appellate Division reversing the judgment dismissing the complaint as to the Hagerty Motor Trucking Company should be reversed and the judgment of the Trial Term affirmed, with costs.
HISCOCK, Ch. J., HOGAN, POUND and CRANE, JJ., concur with ANDREWS, J.; McLAUGHLIN, J., reads dissenting opinion in which CARDOZO, J., concurs.
Judgment accordingly. *Page 42