These cases present the troublesome question whether a servant in the general employment of -one person is, with respect to a particular transaction, the servant of another. Though there can be n'o difference of opinion on the fundamental principles involved, the question has arisen under such a variety of circumstances as to make each case depend upon its own facts. I agree with Mr. Justice Scott that the driver, whose negligence caused the accident in this case, was not the servant of the undertaker. Kellogg v. Church Charity Foundation (203 N. Y. 191) is plainly an authority for that proposition. The hiring by the undertaker was precisely like that of the ordinary hiring of a livery turnout, referred to by Mr. Justice Moody in Standard Oil Company v. Anderson (212 U. S. 215), as the simplest and one of the earliest decided cases. If, then, instead of being borrowed for the occasion, the driver had been one of the defendant’s regular employees, there could be no doubt of the latter’s liability.
The driver was in the general employment of James Naughton’s Sons, who, at the defendant’s request, had sent him to the defendant’s stable with instruction to take orders from the latter. The person thus sending him testified: “I didn’t know where he was going. I simply sent him over to Deffaa because Deffaa requested a coach and horses and a driver.” Plainly, the general employer did not engage to do any particular work for the defendant. The latter was at liberty to use the driver generally in his business, to send him to the undertaker or to some other customer, and, upon his return, to send him to still another. The case appears to me, therefore, to be the familiar one of a servant in the general employment of one person, temporarily loaned to another to do the latter’s work, and it is unnecessary at this day to cite authority in support of the proposition that in such case the servant becomes pro hac vice the servant of the borrower. The rule respondeat superior applies with the same force to a borrowed as to a regular employee.
As between the undertaker and the defendant, the latter was an independent contractor, and the driver, though subject to the former’s instructions as to where he should go, was doing *823the latter’s work and was for the time being under his control, precisely as though in his general employment. As between the general employer and the defendant, the driver was merely loaned by the former to the latter.
The reasoning of the court in the two cases cited supra supports the view that the defendant was liable for the negligence of the driver upon the application of the rule respondeat superior. In the Standard Oil Company case Mr. Justice Moody referred to the accepted reason for the rule as given by Chief Justice Shaw in the oft-quoted case of Farwell v. Boston & Worcester Railroad Corporation (4 Metc. 49), i. e., that the master is held liable for the wrongs of his servant because the latter is conducting the master’s affairs, a reason which, I think, is sometimes overlooked in determining the master’s liability both to servants and to third parties. Every man should be held answerable for the conduct of his own business, and for the agencies employed by him in this business, whether animate or inanimate, and that reason appears to me to be the only satisfactory one for holding one man answerable for the torts — the unauthorized acts — of another. In discussing the proposition that the true test of liability is whether the servant was doing the defendant’s work, Mr. Justice Moody put the case so plainly and his language is so apposite that it will bear repetition. He said: “ It sometimes happens that one wishes a certain work to be done for his benefit and neither has persons in his employ who can do it nor is willing to take such persons into his general service. He may then enter into an agreement with another. If that other furnishes him with men to do the Work and places them under his exclusive control in the performance of it, those men became pro hac vice the servants of him to whom they are furnished. But, on, the other hand, one may prefer to enter into an agreement with another that that other, for a consideration, shall himself perform the work through servants of his own selection, retaining the direction and control of them. In the first case, he to whom the workmen are furnished is responsible for their negligence in the conduct of the work, because the work is his work, and they are for the time his workmen. In the second case, he who agrees to furnish the completed. work *824through servants over whom he retains control is responsible for their negligence in the conduct of it, because, though it is done for the ultimate benefit of the other, it is still in its doing his own work. To determine whether a given case falls within the one class or the other we must inquire whose is the work being performed, a question which is usually answered by ascertaining who has the power to control and direct the servants in the performance of their work.” In the Kellogg Case (supra) Judge Willard Bartlett, referring to the opinion of Mr. Justice Moody in the Standard Oil Company case, said: “ Where one furnishes another with men to do work for him and places them under his exclusive control in its performance those men become pro hac vice the servants of him to whom they are furnished and he is responsible for their negligence because the work is his work and they are his workmen for the time being.” Applying that test it appears to me that the defendant is liable for the driver’s negligence. The driver was certainly not doing the work of his general employer because the latter had not engaged to do that work. He was not doing the work of the undertaker, because the latter had employed the defendant as an independent contractor to do it. The work, then, was that of the defendant, done by the agencies supplied by him and subject to his control, except in so far as the undertaker might direct the course of the journey.
For the foregoing reasons, I vote to reverse the judgment and to grant a new trial.
Laughlin, J., concurred.
Judgments affirmed, with costs.