*494The opinion of the court was delivered by
Minturn, J.The Gray Burial and Cremation Company of Cranford, in this state, like many undertaking establishments, conducted a livery business in which it let-automobiles out for hire. The defendants, Caseys, were undertakers in business at Plainfield, and hired one of the Gray automobiles, with a driver, to go from Plainfield to a cemetery in Brooklyn, where an interment was to he made under the Caseys’ direction. John F. Casey sat upon the front seat with the driver, but gave no directions and exercised no control over the machine, except to state generally to the driver the cemetery objective of the funeral. The ferriage fares over the Hudson were paid by the driver, and the entire control and modus operandi of the machine was under the direction and management of the Gray driver.
At an intersection at Canal street and the Bowery, in New York City, near the entrance to the Manhattan bridge, the automobile was stopped by a traffic officer in order to allow pedestrians to cross the street. Among the belated pedestrians was this plaintiff, who, after the signal to cross had been given, was struck by the automobile in question and seriously injured. The suit was brought to recover damages for his injuries.
The case against the Gray company was decided in its favor by tire court upon a motion to nonsuit. The case against the Caseys was allowed to go to the jury under the court’s charges that the Caseys were the employers of the driver of the machine, who thus became their servant, and upon the doctrine of respondeat superior the Caseys were made liable by the jury’s verdict for the driver’s negligence.
The learned trial court based his legal view as to the Caseys’ liability upon the well known ease of Cuff v. Newark and New York Railroad Co., 35 N. J. L. 17. Affirmed by this court in the same volume at page 574. But obviously he misconstrued both the rationale and the tenor of that determination. While the case discusses in an elaborate opinion by Justice Depue the incidental and somewhat cognate relationship of master and servant, the essential question *495involved therein was the liability of a landowner for the act of a servant of an independent contractor. Upon the rule there laid down a new trial was granted, the case was retried, and at the June term of the following year this c-onrt affirmed a judgment for the defendant upon the opinion of Justice JDepue in the earlier case, which was adopted as the opinion of this court. The reasoning of that distinguished jurist throughout- the opinion, makes it manifest, supported by a wealth of authority, that the doctrine of master and servant, from which emanates the principle of respondeat superior, is based in essence upon the legal theory inherent in the maxim, qui facit per alium facit per se, involving fundamentally the fact of control, direction and representation in the service at hand. He thus defines the relationship : “That liability flows,” says he, “from the relation of master and servant, a relation incident to which is the power to select the servant, and direct him in the execution of the duties of his employment; and to discharge him when found to be incompetent; and also the duty to so control his acts that no injury may be done to third persons.”
More than ten years thereafter, the question at bar was distinctly presented in an opinion by the same learned justice, in this court, in the case of N. Y., L. E. & W. R. R. Co. v. Steinbrenner, 47 N. J. L. 161. There the plaintiff hired the coach and driver to take the plaintiff and his family to an adjacent resort, to do which it was necessary to cross the defendant’s railroad; and the essential question presented was whether the alleged contributory negligence by the driver could be attributed to the plaintiff upon the theory of the doctrine of master and servant. At that period of the development of this department of the law, the case of Thorogood v. Bryan, 8 C. B. 114, sustained the proposition that 'the passenger in a public conveyance by reason of his power and opportunity of “selection” had “identified” himself with the owner and his servants, so that in the language of one of the judges, “he must be considered a party to it.” This court refused to follow that doctrine, and it was therein expressly repudiated. The wisdom of that repudiation has since been *496abundantly justified by the fact that today that much criticised determination constitutes no part of the English law, and has been repudiated by the critical analysis of every standard text writer.
In the Steinbrenner case, the elements of hiring, control, direction and power of. dismissal are made distinct ratio decidendi, and present the fundamental tests of the liability of the occupant and hirer of the coach, under the legal status test of master and servant.
The flight of time has served to firmly imbed this doctrine in our jurisprudence. Fundamentally, as we have, demonstrated in subsequent cases, the theory of master and servant, like that of principal and agent, is based upon the legal conception of representation in a chosen and accepted line of service, by which the employe practically becomes, for that particular duty, the alter égo of the master. It becomes manifest, therefore, that the vicarious responsibility of a third party for injury resulting from the negligent act of another can be legally or logically supported upon no other recognized conception. An enumeration of the cases will serve the purpose of elucidating the principle. Rodenburg v. Clinton Garage Co., 84 N. J. L. 545; Holler v. Ross, 68 Id. 324; Doran v. Thomsen, 76 Id. 754; Missell v. Hayes, 86 Id. 348; Jennings v. Okin, 88 Id. 659; Cronecker v. Hall, 92 Id. 450; Mann v. Max, 93 Id. 191; Karas v. Burns Bros., 94 Id. 59; Zampella v. Fitzhenry, 97 Id. 517.
Tested, therefore, by this principle, it is manifest from the undisputed facts in the record, that the defendants, Caseys, neither hired, directed nor controlled the driver; nor did they exercise over him power, authority or supervision, more than to impart to him, as was done in the Steinbrenner case, the particular purpose and object of his employment, leaving to him the exclusive management, itinerary direction and control of the vehicle, which factors, as we have observed, present the substantial inquiries and determinative tests for ascertaining the existence of the legal relationship' of master and servant, and consequent liability thereunder.
*497Nor can the factual and legal status of the driver be ignored in dealing with the liability of the parties; for manifestly as a sentient being capable of choosing his own employment, his services could not be transferred to another without his consent, expressly or impliedly given; and whether such transfer was, in fact, effectuated would inevitably become a jury question, whenever, from the testimony, that inquiry would assume thejform of a debatable question; for as was stated by Justice Magie, for the Supreme Court, in D., L. & 17. R. R. Co. v. Hardy, 59 N. J. L. 35 (affirmed by this court in the same volume at page 562) : “To establish the fact that the servant of one has thus transferred his services to another pro hao vice, it must appear that he has assented expressly or impliedly to such transfer. 3STo one could transfer the services of his servant to another master without the servant’s consent.” But like all other factual inquiries there must he testimony in the case upon which the submission of ■that, question to, the jury can be legally predicated; and where, as in the case at bar, no such testimony is apparent, a nonsnit or a direction of a verdict becomes the logical and legal alternative.
In considering the liability of the defendants, Caseys, the Gray company has intervened by briefs to- support the judgment. The legal effect of the direction of the court in the Gray case, as a matter of procedure, is not distinctly before us upon this appeal. That inquiry may be determined hereafter upon a subsequent presentation of the question by the plaintiff, as a distinct issue.
The judgment appealed from wall be reversed.