Kellogg v. Church Charity Foundation of Long Island

Rich, J. (dissenting):

I dissent. The crucial question presented upon this appeal is whether the trial court erred in denying the defendant’s motion to dismiss the complaint, made at the close of the evidence, upon the ground that the plaintiff had' failed to establish that the driver of the ambulance was the servant of the defendant at the time of the accident, and in submitting that question to the jury over defendant’s objection and exception.

The defendant is a charitable corporation, maintaining a hospital in Brooklyn, at which it receives, treats and gives surgical attention to patients applying for such service, and those sent to it by outside physicians. ■ It owns an ambulance lettered on the sides St. John’s Hospital,” which is used for conveying patients to the institution. Owning no horse, its officers made an arrangement with one Williamson, a livery stable keeper, whereby upon telephone- call he should cause one of his horses to be attached to the ambulance, furnish a driver, and send the rig to the hospital immediately. The defendant furnished a cap to be worn by the driver, having upon it the same lettering as was upon the ambulance. On arriving at the hospital the driver was directed where to go, and a hospital surgeon accompanied him for the purpose of rendering aid to the patient, if required, while on the way to the hospital. Ordinances of the city of Hew York gave ambulances 'the right of way over "all *846vehicles except those carrying the United States mail, and required a vehicle turning' to the left into another street to pass to the right of and beyond the center of the street intersection before turning. On the day of the accident a physician, in no manner connected with the hospital, telephoned that he had a patient whom he wished brought.to the hospital at once for an operation. Some officer of the institution telephoned Williamson for the ambulance. The latter caused one of his horses to be attached to it, gave the charge of the rig to one of his drivers, Flood, and s,ent it to tlié hospital. On arriving there the driver was told where to go; defendant's house physician entered the ambulance, occupying a seat at its rear, and the driver started for the place of destination. In proceeding, he passed through Decatur street, which is an east and west street, turning northerly into Lewis avenue, which is a north and south avenue. As the ambulance approached Lewis avenue the plaintiff, riding a bicycle, was passing south on that avenue. . The'horse was being driven on a fast trot, and the driver did not observe the requirements of the ordinance in turning, but made a short cut across the northwest corner of the streets, coming into Lewis avenue on the same side of the' street as .that on which plaintiff was riding, and - collided with him at the street intersection, inflicting the injuries for which he has recovered.

' The contention of the respondent that the question as to whether the relation of master and'servant existed between the appellant, and the driver of its ambulance is stare decisis because of the reversal of the judgment on the former appeal is without merit. The only question then considered was whether a charitable corporation was liable for the negligence of its servants resulting in injury to persons not patients or. beneficiaries of the institution (128 App. Div. 214), but even if it was decided that the driver was defendant’s servant, it is not too late to correct that error. The question before the trial court upon the motion for a dismissal of the complaint was as to whose servant Flood, the driver of the ambulance, was. Was he the servant of the defendant or of Williamson ? Kecessarily, this was a vital question, because, in order to render the defendant liable for the negligence of the driver, it must have been established .that the relation of master and servant between the defendant and Flood existed, otherwise the defendant was entitled *847to a dismissal of the complaint. I do not regard, the evidence as being sufficient to establish the existence of this relation, and lam of the opinion that the denial of the defendant’s motion for a dismissal of the complaint upon that ground was error. When plaintiff rested ^his case hé had proven that the name of the defendant’s hospital was printed upon the sides of the ambulance and on the cap of the driver, and that after-the accident he was placed in the ambulance by direction of defendant’s house physician and taken to such hospital, which was sufficient to establish, prima facie, that the horse and ambulance were the property of the defendant, and that the driver was in its employ. But when the testimony was closed a very different question wras presented. The prima facie case had been met and overcome by undisputed evidence, which the court was not at liberty to-disregard, conclusively establishing that the defendant did not own the horse drawing its ambulance, did not employ or pay the driver, and did not possess the power or right to discharge him. Flood was a servant of Williamson, selected and paid by him for the service he was performing, and Williamson alone possessed the power to discharge him. He was employed, paid and sent out with the ambulance by Williamson, and not by the defendant. There is no proof that the latter undertook to exercise the right to direct or control the driver in any detail except as to where to drive, and whether to go fast or slow, or that it had such right. The relation of the defendant in this respect is no different from that of a person who hires a carriage of a liveryman and directs where to drive and at what rate of speed lie-should go, where, so far as I am aware, it has always been held insufficient to establish the relation of master and servant or make the negligence of the driver imputable to the person hiring the carriage. With these facts established there •was no possible basis upon which the jury could find that Flood ivas the servant of the defendant.

Among thé many cases in this State in which this question has been considered are the following: Richardson v. Van Ness (53 Hun, 267); Lewis v. Long Island R. R. Co. (162 N. Y. 52); Walsh v. Riesenberg (94 App. Div. 466); Johnson v. Netherlands Amer. S. Nav. Co. (132 N. Y. 576). The same rule, has been declared in Massachusetts (Driscoll v. Towle, 181 Mass. 416; Rea*848gan v. Casey, 160 id. 374); in California (Stewart v. California Improvement Co., 131 Cal. 125); in Colorado (Frerker v. Nicholson, 41 Col. 12); in Michigan (Joslin v. Grand Rapids Ice Co., 50 Mich. 516); in New Jersey (N. Y., L. E. & W. R. R. Co. v. Steinbrenner, 47 N. J. L. 161), and by the Federal courts (Little v. Hackett, 116 U. S. 366; Quinn v. Complete Electric Const. Co., 46 Fed, Rep. 506). If it be conceded as a fact that Flood was .the regular driver of or usually drove the ambulance, it is immaterial, because being an employee of Williamson, selected by him for that service, he could not by, frequency of performance create the relation .of master and servant between himself and the defendant, or make .the latter liable for his negligence. (Catlin v. Peddie, 46 App. Div. 596.) Upon the facts presented it is clear to me that the driver of the ambulance was not the servant of the defendant, but remained the servant of Williamson; that the relation of master and servant was not shown to have existed between Flood and the defendant at the time of the accident, and I must, therefore, vote to reverse the judgment and order from which this appeal is taken.

Judgment and- order affirmed, with costs.