(dissenting):
I am constrained to differ from the views of my associates, as expressed in the opinion of Hr. Justice Hirschberg.
On Christmas eve, 1898, the plaintiff was crossing Livingston street, at its intersection with Bond, in the borough of Brooklyn, wlien her foot was caught by a rope trailing along the street from a two-horse truck ; she was thrown to the ground, dragged some distance and received serious injuries. The complaint alleged that the injury was occasioned by c' one of the défendants’ horses and trucks in charge of their servants,” and the answer denied the allegation. The .plaintiff and her witnesses described the truck as having oil it a strip of canvas upon which was painted the defendants’ firm name, Abraham & Straus. The defendants’ evidence was sufficient to show that the firm owned many trucks, upon which its name was painted, but none which had upon it a canvas strip of the character described; that at the holiday season in question the firm hired from eleven different owners more than forty trucks for the delivery *81of goods, and that such trucks had upon them, canvas strips with the name of the firm painted thereon. The evidence was thus sufficient to. show that the truck which caused the injury to the plaintiff was one of those hired, but there was no evidence to identify the particular truck or to show its ownership, as it appeared that the driver drove away without stopping at the time of the accident. The evidence showed that thirty of the hired trucks were engaged under a written contract, which is set out in the prevailing opinion. The other eleven were subsequently hired from the same parties without any written contract, but I think it appears from the evidence, as the court below assumed, that they were hired on the same terms.
There was evidence for the defendants, not contradicted, that they were proprietors of a large department store, and used bins into which packages for different localities were deposited. Each bin represented a different route. Instructions were given to each driver of the hired trucks, to take a particular bin, that is, to load his truck therefrom, and no other instructions were given him by the defendants or their employees. The driver and helper packed the load. In each package was a slip or blank receipt containing the destination of the package, and it was the duty of the driver to take the package to such destination, have the receipt signed and return it to the defendants’ store. When goods were sent O. O. D., the cash represented was turned over by the driver to his own employer, who made return thereof to the defendants’ cashier at the store. There was no evidence that the defendants assumed control of the method of loading the hired trucks or of fastening the loads or of having or using any ropes thereon or of- the method of driving or managing them while on their several routes. Indeed, the contrary appeared.
It is evident from this statement that the defendants’ responsibility must be predicated upon the contract between them and the owners of the hired trucks. There is nothing in the evidence to vary the obligation expressed in the written contract, as to the management of the trucks, and the question is, whose servant was the driver at the time of the accident %
At the close of the plaintiff’s evidence, the defendants moved for a dismissal of the complaint, upon the ground that it had not been *82established that the wagon in question was a wagon belonging to the. defendants, and that it had not been shown that the driver was. in their employ or control. This motion was renewed at the close of the whole evidence and also upon the further ground that it was affirmatively established that the truck was one of those hired by the defendants.
The evidence shows that the defendants made an independent contract with the owner of the truck for the use of tlie truck and team with a driver and helper, for the delivery of their goods. In this business the driver and 'helper were the servants of the owner of the truck and not the servants of the defendants. The defendants had no control over the truck or the driver and helper, so far as the driving or the method of taking the packages to their destination, or the general care of the truck and its equipment was concerned, nor did they assume to exercise- any. They did not hire or-pay the driver or helper and had no power to discharge them. ’ For the negligence of such driver or helper in the performance of this independent contract resulting in the accident, the defendants are not liable to the plaintiff,
•- In Blake v. Ferris (5 N. Y. 48) the doctrine of respondeat superior was defined by reference to English cases, one of which was Quarman v. Burnett (6 M. & W. 499), the reasoning of which was áppróved by the Court of Appeals. In that case the defendants owned a carriage, and hired a driver and a pair of horses from another person, to draw the carriage for a short time, during which an injury was done to the plaintiffs’ property by the carelessness of the driver. The court denied a motion to nonsuit. The ground of the decision was that the master only is responsible for the acts of the servant, and that there can be but one responsible .superior for the same subordinate at the same time and in respect to the same transaction. The Court of Appeals approved the remarks of Judge Story, in his work on Agency (§§ 453a, 453b), where he says that the better opinion is that, in such cases the driver is to be treated as the servant of the stable keeper, notwithstanding, his temporary hiring; and that he cannot be deemed at the same time the servant of both stable keeper and the hirer. Judge Story says: “ Nice questions have arisen * * * where' the facts presented the inquiry, when and under what circumstances the parties *83employed are to be deemed the servants or sub-agents of the principal employer, and when only the sub-agents of the immediate person by whom they are actually employed. In the former case the principal employer is liable, * * * in the latter, not.” (§ 454a.)
In Michael v. Stanton (3 Hun, 462) a master sent his team to work for the defendant, and while doing such work the servant negligently drove the wagon against that of the plaintiff. It was held that no cause of action existed against .the defendant, as “ the defendant did not employ Hinckley (the servant), and had not the power to discharge him. This is the only test by which to determine which is the master, and, as such, liable to the person injured.” It is to be noticed that this case is cited as authority in the opinion of Mr. Justice Merwin in Murray v. Dwight (infra), to which, on appeal, the Court of Appeals referred in terms of highest praise.
In Gerlach v. Edelmeyer (47 N. Y. Super. Ct. 293 ; affd. without opinion, 88 N. Y. 645). it was said: “ Dittmer, through whose negligence the áccident happened, was the defendants’ servant, paid by and controlled by them. They hired him; they could discharge him.' This is the true test by which to determine who is the master, and, consequently, who is liable to the party injured.”
In Sanford v. Standard Oil Co. (118 N. Y. 571) the plaintiff was an employee of a firm of stevedores engaged to load a ship with barrels of petroleum, which were on the dock of the defendant, the latter agreeing to furnish the engine and apparatus for hoisting and lowering the barrels and the necessary men to run and manage it. The plaintiff’s duty was to stand at the gangway and signal .to Gebhard, one of the persons employed by the defendant to manage the hoisting and lowering of the barrels. Gebhard raised a barrel without any signal, in consequence of which the plaintiff was injured. The case turned upon the question whose servant Gebhard was. The court held that he was not the servant of the stevedores but of-the Standard Oil Company.
In Butler v. Townsend (126 N. Y. 105) it was said by Judge Finch (p. 108): “ One may be employed without being a servant and have an employer who is, nevertheless, not the master. (King v. N. Y. Central & H. R. R. R. Co., 66 N. Y. 181.) The relation exists where the employer selects the workman, may remove or discharge him for misconduct, and may order not only what work shall *84■be done, but the- mode and manner of performance. (Blake v. Ferris, 5 N. Y. 48 Town of Pierrepont v. Loveless, 72 id. 214.) ”
' In King v. N. Y. C. & H. R. R. R. Co. (supra) it was said (p. 184): “ It is not enough, in order to establish a liability of one ■person for the negligence of another, to show that the person whose negligence caused the injury was at the .time acting under an employment by the person who is sought to be. charged. It must be shown, in addition, that the employment created the relation, of master .and servant between them.” This was quoted in Hexamer v. Webb (101 N. Y. 377) and both cases cited with approval in Murray v. Dwight (15 App. Div. 241 ; affd., 161 N. Y. 301). It was held that the mere fact that one renders some service, to. another for compensation, express or implied, does not necessarily create the legal relation of master and servant; that a servant is one who is employed to render-personal-service to his employer otherwise than ■in the pursuit of an independent calling.
Murray v. Dwight, (supra) contains, an analysis of' previous decisions of the Court of Appeals upon the question here involved. The court, O’Bkibn, J., writing, said (pp. 305, 306): “ The relation of master and servant is often confused with some other relation. The mere fact that one person renders some service to another for compensation, expressed or implied, does not necessarily create the legal relation of master and servant. There are many kinds of employment which are peculiar and special, where one person may render service to another without becoming his servant in the legal sense. . A servant is one who is employed. to render personal services to his employer otherwise than in the pursuit of an independent calling. The truckman who transports the traveler’s baggage or the merchant’s goods to the railroad station, though hired and paid for the service by the owner of the baggage or the goods, is not the servant of the person who thus employs him. He is exercising- an independent and quasi public employment in the nature of a common carrier, and his customers, whether few or many, are not generally responsible for his negligent or wrongful acts, as they may be for those of other persons in their regular employment as servants. A contract, whether express or implied, under which such special jobs are done or such special services rendered, is' not that of master and servant.within the law of negligence.”
*85Anderson v. Boyer (156 N. Y. 93) is cited by the plaintiff as ' authority in the case at bar. I cannot so regard it, and I think the court made the same distinction which I have attempted to point out. In that case Boyer, the owner of a lighter, by charter to one Schoenewolf, gave him possession and absolute control of the boat with its captain and mate until the charterer should finish the work for which he chartered the lighter. A third person, the plaintiff, was injured through the negligence of the captain in unloading, and the court held that the captain was the servant of the charterer and not of the owner, and that this negligence was not chargeable to the owner, who, being under no obligation to unload the vessel, had not in fact attempted to interfere with it. But the court expressed no opinion as to the liability of Boyer, the owner, for negligence in the navigation of the vessel. Chief Judge Parker, writing, said (p. 103): “It may well be that the captain still owed to these defendants the duty of navigating the vessel carefully, but that Schoenewolf, under this contract, had the right to retain the possession and control of her so long as it should be necessary to move the materials which he had chartered her to move, is beyond question, and it is equally true that, during such time, he had the right to control both, the captain and the mate in loading and unloading the vessel. If more than two men had been needed, either to load or unload, Schoenewolf, and not the defendants, would have had to employ them. As matter of fact more men were required and were employed by Schoenewolf, the charterer, and certainly nowhere in the contract as testified to, can there be found a basis for charging that the defendants had anything whatever to do with the loading or unloading of this boat, or the right to control it.”
The analogy to the case at bar seems very apparent. In the driving of the horses the driver owed a duty to, and was the servant of, his employer just as the master of the lighter owed the owners the duty of navigating it. With this Schoenewolf had not interfered. But Schoenewolf as charterer was in charge of and directing the unloading of the lighter, and hired other and additional men for that purpose, and was held liable on the ground that he was in charge of and directing the work. No such thing occurred in the case at bar. The defendants made an independent contract with the owner of the truck who was to furnish a driver and helper. The defendants *86simply instructed the persons furnished by the owner of the truck to perform the business of the contract,, and did not interfere with the method of doing it. They did- not employ or pay the men, and were under no contract, express or implied, to do so. They had no power to discharge them. They gave no directions as to the method in which the team and truck should be driven or managed. In the performance of that Work the driver and helper were the agents of the owner of the truck,-by whom they were employed and paid.' They could not be at the same time the servants of the defendants and of their own employer, and for their negligence the defendants are riot responsible.'
In Sullivan v. Dunham (35 App. Div. 342, 347, 349) Mr. Justice Hatch pointed out the distinction which I have endeavored to make. He said : “ The learned counsel for the defendant, Dunham, claims that the supreme test is ; 6 Did the agreement provide for a result to be accomplished by the employee, and did it leave to the employee the means and method by Which that result was to be accomplished ? If it did, then the relation is that of employer and contractor, and not that of master and servant/ We accede to this view of the law, and it is in accord with the authorities upon this subject. (Hexamen v. Webb, 101 N. Y. 377; Butler v. Townsend, 126 id. 105 ; Herrington v. Village of Lansingburgh, 110 id. 145.) * * * The córitention of the plaintiff that liability attaches even though the relation be that of independent contractor, cannot be sustained. Such rule does not apply unless the work itself creates the injury. (Downey v. Low, 22 App. Div. 460.) In the present case it is' quite clear that the injury arose, not -from the work done, but from the method adopted in doing it.”
And in Weber v. Buffalo Ry. Co. (20 App. Div. 292, 295) Ahe court said : “ In the" present case the relation of master and servant did not exist between the company and the contractor, but the true relation was' that of principal and contractor. It is true that the company had the right of superintending and supervising by its agents the execution of the work, and giving directions in relation thereto; but the- decisions show that these circumstances do not of themselves render a- principal liable for the negligent act of the contractor, unless it was brought about by the order of the principal.”
■ So, in Vogel v. Mayor (92 N. Y. 10), Judge Earl, writing, *87the court cited various precedents, among them Pack v. Mayor (8 id. 222), and Kelly v. Mayor (11 id. 432), and said (p. 18): “ In Pack v. The Mayor, the city had made a contract with a person to grade a street, and the damage complained of was done by the carelessness of a sub-contractor in blasting rock. It was held that the person actually guilty of the careless act was liable for the damage, and that the city was not liable, as it had no control over the workmen of the contractor — could not dismiss them or direct the manner in which the blasting should be done. In reference to a clause in the contract in that case, which bound the contractor to conform the work to such further directions as might be given by the city or its officers, the court held, as stated in the head note, ‘ It gives to the corporation power to direct as to the results of the work; but without control over the contractor or his workmen, as to the manner of performing it; which control alone furnishes a ground for holding the master or principal liable.for the act of the servant or agent.’ But the plain inference is that the city in such a case is liable for the consequences of operations which are subject to its control. The case of Kelly v. The Mayor was similar to the case of Pack v. The Mayor, and was disposed of upon precisely the same principles. The doctrine was again announced that to make the city liable it must have the power to direct and control the manner of performing the very work in which the carelessness occurred.”
I think that the doctrine thus stated destroys the force of the argument of the learned counsel for the plaintiff, that because the defendants directed the doing of the work of the contract they rendered themselves liable for the method in which it was performed.
In addition to this, there seems to have been error in the admission of evidence. Parr, superintendent of delivery of goods for the defendants, testified to the contracts for the hiring of the trucks or vans, and that they had strips of canvas upon them with the firm name painted thereon. The following occurred on the cross-examination by Mr. Patterson, plaintiff’s counsel: “ Q. Why did you furnish these strips with Abraham & Straus on for these wagons? A. For the purpose of advertisement. Q. For the purpose of advertising that they were your wagons ? Mr. Bouvier: I submit that that is a conclusion. The Court:. If the witness adopts *88it, it will help the plaintiff. Mr. Bouvier: I take an objection to the question on the ground that it involves a conclusion for the witness. [Objection overruled. Defendant excepts.] A. Tes, I guess so. Q. What ? A. Yes, sir. Q. Then you regarded them as your wagons for the purpose of these deliveries, didn’t you? Mr. Bouvier: The same objection, as a conclusion put in the mouth of the witness and not binding upon the defendant. [Objection overruled. Defendant excepts.] A. Yes, sir. * * * By the Court: Q. What duty has the driver about them when he comes to deliver that;particular package? A. He takes this receipt, delivers his goods and gets his receipt signed. ■ Q. And brings it back to you? A. Brings it back to the house. By Mr. Patterson: Q.. That he was doing for you, wasn’t he ? A. For Abraham & Straus — yes, sir. Q. He was to do it for Abraham & Straus, and he was to do it under their direction, wasn’t he? A. Yes, sir. Q. He was delivering all these goods for Abraham & Straus, wasn’t he — all the goods he had in the wagon ? A. Yes, sir. Q. And Abraham & Straus :were having that man do their work, weren’t they — each ' of these drivers on a hired wagon ? [Objected to as calling for a conclusion and not binding upon the defendant. Objection overruled. Defendant excepts.] A. Yes, sir. * * •* Q. Belford (one of the contractors) is obliged to do what you say ? A. Yes, sir. Q. Belford himself' is under'your control, isn’t he? [Objected to as calling for a conclusion' and not binding upon the defendant. Objection overruled. Defendant excepts.) Q.-Belford himself is under, your control,'isn’t he ? A. Yes. Q. And he is obliged to-give you the use -of that van and that man for what things you Avant done, isn’t he ? [Same objection. Objection -overruled. Defendant excepts.] Q. Isn’t that right? A. Yes, sir. Q. And you controlled both Belford and the van and -the man, didn’t you, at this time ? [Same objection. Objection overruled. Defendant excepts.] A. Yes, sir. * * * Q. Isn’t it a -fact that you regarded these trucks as your trucks for the purpose of this work ? [Objected to as calling for a conclusion and not binding upon the defendant. Objection -overruled. Defendant excepts.] A. We certainly used the trucks for our delivery purposes. Q. You used them? A. Yes, sir. Q. That is, Abraham & Straus -used them? A. Yes, sir. Q. And Abraham & Straus controlled them while *89they were in the course of delivery, didn’t they ? [Same objection. Objection overruled. Defendant excepts.] A. Tes, sir. Q. And controlled the men on them ? A. Tes, sir. Redirect examination by Mr. Bouvier: Q. What do you mean by saying controlled; the men on them? After they had left your establishment, what, if any, control did you have over those men? A. None. Q. Therefore, after they had left your establishment you had no control over them? A. No,-sir. Mr. Patterson: I object to this as leading. [Objection overruled.] Q. What did you mean by saying that you had control over the principals of these contracts ? A. As I understand it, I understood it then that we hired these vans to do our business; they were to furnish them ; we placed them wherever the business demanded. Q. Was that what you meant by control? A. Tes, sir. Q. Were there any other terms prescribed in respect of the use of these wagons than those prescribed in the contract put in evidence ? A. No, sir. Q. Now, did you ever, or did any of your subordinates ever, direct any driver as to what streets he should take or what course he should pursue in respect of the parcels he got from any one bin ? A. Not to my knowledge. Q. Did you ever hear anybody do it ? A. No, sir. Q. In the employ of Abraham & Straus? Did you ever do it yourself? A. No, sir, I never did.”
The remark of the learned trial justice, above quoted, “ If the witness adopts it (the conclusion) it will help the plaintiff,” was eminently true, and there can be no question that such was its effect. But the evidence was a mere conclusion of the witness and was inadmissible. It was not a statement of any fact.
In Miller v. Long Island R. R. Co. (71 N. Y. 380), where the question arose as to the person in possession of lands, the court said (p. 385): “ The same witnesses were allowed against objection that it was incompetent, to testify generally that they were in possession of the lands. I am inclined to think that in the case of uninclosed, unoccupied woodland it is incompetent to ask a witness whether he was in possession of the land. The peculiar facts should be shown which in law in such case constitute possession. But if the witness should to such a question answer that he was in possession, it would prove nothing, if the facts also testified to showed *90that' he was not in possession.” This case was cited'with approval in Arents v. Long Island R. R. Co. (156 N. Y. 1), where a witness was -asked: “ Who has been in possession of this farm ? ” ■ The court said (p. 9): “ It was excluded and an' exception was taken. The referee had been careful to admit in evidence all the acts of the-parties tending to show possession. He had permitted evidence to be given showing whether the premises were fenced, when and how cultivated, and what was done upon the land from time to time; The question as to whether the witness, was in possession Was a conclusion of law to be drawn from the facts. The ruling was proper.”
Mr. Abbott, in his Trial Evidence (2d ed. p. 53), says: “ The declarations of the officer or agent cannot suffice to show the existence or scope of his authority, but he may be called as a witness to prove it. If implied authority is essential to the cause of action, he should be required to state the -facts relied on as raising implied authority, and Should not be asked whether or not he had authority-to do the act in question, for this is asking for' a conclusion.”
In the cases cited the court held that the facts indicating possession must be proved, In the case at bar the vital question for the jury to decide was whether the defendants controlled the vans and drivers, and this was one of the questions properly submitted to the jury. It was error to permit the witness to testify to a conclusion which invaded the province of the jury. The plaintiff’s counsel contends, however, that the defendants’ counsel opened the door to this kind of testimony when he inquired of Parr, on direct examination : “ Q. Have you or did you have at that time in the • possession of or Under the ownership or control of the defendant any vehicle for the delivery of goods or wares that had such a dirty white canvas as described ? A. No, sir,”
But the difficulty is that it was the plaintiff who introduced evidence “ opening the door ” to conclusions as to these trucks with dirty canvas. , .
By defendants’ counsel: “ Q. I understood you to say that this was a white canvas truck ? A. It looked sort of a gray canvas. Q. That is, a dirty white ? A. Yes, sir. Re-direct examination by Mr. Patterson:, Q. You know; that is the kind of truck Abraham & Straus’ —• [Objected to as calling for a conclusion.] The Court: The question has not been completed. Q. Have you seen exactly *91that sort of truck loading up at Abraham & Straus’ stores? [Objected to as calling for a comparison and for a conclusion.] The Court: Fix the time. Q. About that time. Mr. Bouvier : And it is further objected to as asking the witness to institute a comparison between the truck now described in evidence and one that is not in evidence, and calling for a conclusion of the witness. [Objection overruled. Defendant excepts.] Q. Have you seen exactly that sort of truck ? [Same objection. Objection overruled. Defendant excepts.] Q. About that time? A. Yes, sir. Q. Many of them? A. Yes, sir. Mr. Bouvier: I make the same objection as before. [Objection overruled. Defendant excepts.] Q. Where have you seen them being loaded up? [Same objection. Objection overruled. Defendant excepts.] A. On Livingston street. Q. At what store ? • [Same objection. Objection overruled. Defendant excepts.] A. Abraham & Straus.”
The question of the defendants’ counsel evidently related to the testimony last quoted and was properly admitted to contradict it.
For these reasons I think that the judgment and order should be reversed.
Judgment and order affirmed, , with costs.