The just and proper disposition of this case depends upon the true relation which existed between the truckman and the defendants, at the time of the happening of the injury to the plaintiff.
If the truckman was then the servant of the defendants, they would be liable for the consequences of the act in question, if it was the result of negligence on the truckman’s part.
The master has always been held answerable in damages for an injury resulting from the negligence or want of skill by a servant in the performance of the master’s business.
*275The relation of master and hired servant is a familiar one, and rests altogether on the agreement of the, parties, and gives rise to various rights and liabilities other than those sought to be enforced in this action.
The master has a general authority and personal control over the one who stands to him in the relation of servant. In fact he has a property in the service of those whom he thus employs, acquired by the contract of hiring. The master may maintain an action against one who imprisons the person employed by him for the loss of service. ( Woodward v. Washburn, 3 Denio, 369). Tested by these principles, it is manifest that the truckman was not the servant of the defendants in any sense to make them liable for his acts or omissions. They had no control over him, or of his time or services.
Had he failed to cart the flour from the dock to the store, defendants’ remedy against him would have been an action for a breach of his contract to carry. If the flour had been lost or injured through any negligence on the part of the truckman in carting it to the store, the loss would have fallen on him, and he would have been liable thereupon to the defendants.
A person performing the work the truckman engaged to do for the defendants is not to be considered as their servant, but as one carrying on an independent business in the execution of which he employs others to aid and serve him.
When the injury occurred, the truckman himself was standing near. The negligent act was performed in his presence, and if any person is liable for the act of the man on the cart in rolling the barrel on the skid, it must be the truckman whose agent and servant he was.
By the strict application of the doctrine of respondeat superior, there is but one person who can stand in the chief or principal relation. It would be illogical to suppose that the man on the cart was the servant of two several masters, or that two distinct persons could be severally liable for an act of negligence on his part. In the case of Milligan v. Wedge (12 Adol. & E. 737; 1 Q. B., 714), a butcher employed a licensed driver to drive a bullock from Smithfield to his slaughter house, and the driver himself employed a boy to perform the *276work. The boy performed Ms duty so carelessly, that the bullock, as he was passing the plaintiff’s show-room, run into the shop and injured the plaintiff’s premises and property. The injured party sued the owner of the bullock who was sought to be charged for the negligent act of the boy. But Williams, judge, on the trial, held that the boy was not the servant of the defendant, and the defendant had a verdict. The ruling of the judge in this case was unanimously affirmed by the court on an application to set aside the verdict.
A merchant who employs a licensed carman to do carting, at an agreed price per barrel or package, when the carman carries on Ms business on his own account, as a separate employment distinct from, that of the merchant, with his own means and his own hired men, does not stand to the carman or Ms employees in the relation of master to servant, and is not responsible to third persons for injuries resulting from the negligence or misconduct of the carman or his employees in the performance of his undertaking with the merchant. (Martin v. Temperly, 4 Q. B., 298; Deforest v. Wright, 2 Mich. 368; Overton v. Freeman, 8 Eng. Law & Eq. 479; 11 C. B. 867; Butler v. Hunter, 7 Hurlst. & Nor. 826, 832; Laugher v. Pointer, 5 Barn. & C. 547; Story on Agency, §§ 453 a., 453 b., 454.)
When the plaintiff rested his case, the defendants moved for a nonsuit or dismissal of the case, on the ground that the relation of master and servant between the defendants and the truckman had not been established. The motion was denied.
This disposition made by the learned judge at that time was correct. Ror when the motion was made, the true relations of the parties to each other did not clearly appear.
There was some evidence on the subject, slight indeed, but it tended somewhat to show that the truckman was servant to the defendants.
It appeared that the initials of the defendants’ name were on the cart; it was unloaded before the defendants’ store, and the barrels were rolled over the skid to the store, and were then received by defendants’ clerks, and one of the defendants had used the expression “ my carman” to the plaintiff when addressed on the subject of the injury. This was some evidence *277for the consideration of the jury on the subject as to whether the defendants were not liable for the injury, and where there is any evidence the judge is not warranted in nonsuiting (labor v. Koplin, 4 N. Y. 547).
But the testimony subsequently offered by the defendants established the true relations which existed between the defendants and the truckman. By this evidence it appeared that the truckman was employed to do this specific work for a compensation ; he was to receive a certain sum per barrel; that defendants had no control over him or of the manner in which he performed the work. He used his own truck and men to perform the service.
It was proved beyond controversy that as well the truck and horses as the skid were the property of the truckman; the fact of the initials of the defendants’ name being on the cart was satisfactorily explained.
The initials of the defendants’ name being on the cart could not tend to make them liable for the injury, nor would the fact indeed that they were the owners of'the vehicle render them liable, unless it was driven and controlled on the occasion in question by some person in their service, and drawn by their horses; neither of which circumstances existed (Quarman v. Burnett, 6 Mees. & W. 499). In Weyant v. The New York & Harlem Railroad Company (3 Duer, 360,) the plaintiff was thrown out of his wagon and injured in Canal street by a car belonging to the New Haven Railroad Co., and which was at the time passing on a track used by it; the horses which drew the car belonged to the Harlem Railroad Company, and the driver was in their employment. It was held in that case that the Harlem Railroad Company and not the New Haven were liable for the injury.
The circumstance that the truckman had done carting for twenty years for the defendants in any way could not give character to this particular work, for the performance of which he was specially engaged. If he had done carting in this way for the defendants for any length of time, it could not create the relation of master and servant between the truckman and defendants in this transaction.
*278There was nothing, it appears to me, for the consideration of the jury after the evidence was closed. And the defendants* motion for a dismissal of the complaint which was then renewed should have been granted. Whenever a verdict would be against the clear right of evidence, a nonsuit should be ordered at the trial (Rudd v. Davis, 7 Hill, 529; Lomer v. Meeker 25 N. Y. 361).
The evidence will not sustain this verdict. It should be reversed and a new trial ordered, costs to abide the event.
Judgment reversed.