(concurring in part and dissenting in part). I agree with my colleagues in their affirmance of the jury’s verdict in favor of plaintiffs Mary Lee Nash and Dan Nash against all 3 defendants, the store owner, Sears, Roebuck & Company, the guard service, Heidt’s Protective Service, Inc., and the guard, Art Keolian. I would, however, grant Sears a new trial on its claim that Heidt’s breached its contract with Sears when it supplied a guard alleged by Sears to have been unqualified; on that issue the trial judge erred in his charge to the jury and in refusing to give Sears’ requested charge.
*567I.
Plaintiff Mary Lee Nash was wrongfully accused of shoplifting and assaulted by an unarmed guard, Keolian, employed by Heidt’s who had contracted to provide guard service for Sears. My colleagues hold that a storekeeper has a nondelegable duty to protect his customers from attack by a guard who works on his premises without regard to whether such guard is the servant of an independent contractor engaged by the store owner to provide such service.1
I find no need in order to decide this case further to whittle away at what remains of the general rule which exempts the employer of an independent contractor from liability for physical harm caused by an act or omission of the contractor or his servants.2
*568Keolian indisputably was a servant. Heidt’s asserts he was Sears’ servant and Sears asserts he was Heidt’s servant. In my opinion he was the servant of both Heidt’s and Sears. Heidt’s was an independent contractor in the business of supplying guard and protective service for a number of different employers. Keolian was in tbe general employ of Heidt’s, but tbat does not preclude a determination tbat be bad become Sears’ servant before tbe incident:
“A servant directed or permitted by bis master to perform services for another may become tbe servant of such other in performing the services.” Restatement, Second, Agency, § 227.
And merely because tbe servant of one has become tbe servant of another does not necessarily mean be has ceased to be tbe former’s servant. A person may be tbe servant of two masters “at one time as to one act if tbe service to one does not involve abandonment of the service to tbe other.” Restatement, Second, Agency, § 226.
As to tbe specific act committed upon which liability is here asserted, apprehension of an alleged shoplifter, Keolian bad received instructions from both Heidt’s and Sears. He bad been instructed by both Heidt’s and Sears not to apprehend anyone unless be himself witnessed tbe shoplifting incident. He was thus acting under parallel directions respecting tbe performance of bis duties; and in tbat regard neither Heidt’s nor Sears can be said to have exercised more or less control than tbe other. Both failed in their efforts to avoid tbe kind of incident *569that occurred because Keolian failed to follow their mutual instructions. Keolian apprehended and assaulted Mrs. Nash as she was disappearing into a crowd on the street because he thought she was the one pointed out for shoplifting by a Sears employee. Both Heidt’s and Sears sought to control Keolian; both failed. He was acting on the business of both, albeit in contravention of their instructions, when he stopped and assaulted Mrs. Nash.
Keolian began the day as Heidt’s servant. He had just recently been hired by Heidt’s, who selected and trained him. The day he assaulted Mrs. Nash was the first day he was assigned to work at Sears. Sears used guards inside the subject store on a part-time, intermittent basis. Sears had telephoned for a guard and Keolian was assigned. The length of his assignment at Sears was indefinite.3
Keolian was given detailed instructions by both Heidt’s and Sears concerning the performance of his duties for Sears. Both retained a measure of control over him and the right to supervise, direct and discharge him from further service for Sears. One of Heidt’s witnesses testified it had the right to pull a guard assigned to Sears off the job while he was at Sears and to replace him with someone else. Heidt’s retained the right to continue to supervise Keolian to the extent it chose to do so. Keolian’s services for Sears did not involve an abandonment of his service for Heidt’s, and at the time of the incident Keolian had not ceased to be one of Heidt’s servants.
Keolian worked side-by-side with and for Sears’ employees. He was expected to respond to intelli*570gence received from other Sears’ employees, even though he had been instructed not to arrest unless he himself witnessed a shoplifting incident. Keolian was on Sears’ premises as an integral part of the complex of employees whose combined services make it possible to operate a modern department store in a major metropolis. He was Sears’ servant and Sears together with Ileidt’s4 was responsible for his torts, intentional5 as well as negligent.
There being no probative evidence that Mrs. Nash had committed a crime, Keolian, who was a private citizen, not a peace officer, had no right to arrest her.6 Mrs. Nash and her husband are entitled to recover their damages from both masters and the guard. Since the basis of the masters’ liability is vicarious, depending on the fault of their servant, Keolian, rather than their own fault, there are no degrees of negligence to be weighed and neither master can seek indemnification from the other on the ground the other master was more negligent than he was.7 As will appear, that does not preclude one master seeking from the other indemnification *571for breach of a special duty undertaken and owing to the other.
The contract between Sears and Heidt’s was oral. On the evidence presented the trial judge properly submitted to the jury the question whether Heidt’s obligated itself to furnish guards who would make no apprehension unless they themselves witness a shoplifting incident, or whether it obligated itself only to instruct its guards to exercise such restraint. The jury by its verdict found that the contract did not oblige Heidt’s to furnish guards who would in fact exercise such restraint; that verdict is not contrary to the preponderance of the evidence. So far at least, I agree with my colleagues regarding the result although not in opinion.
Our disagreement concerns the trial judge’s charge and failure to charge concerning the obligation to furnish a qualified guard. The trial judge charged:
“This relationship between Sears and Heidt’s is a contract, and one of the things for you to determine under the cross-claim of Sears is whether one of the things agreed to under that contract was whether a qualified guard was to be sent over.”8
The trial judge erred in so charging the jury because it is an implied term of every contract to supply services that the services will be performed in a reasonably skillful manner.9
Sears was entitled to its requested instruction “that there was a duty on the part of Heidt’s to use *572due care in selecting, training and instructing the guards it sent to Sears.”10 As a corollary of the obligation to provide services in a reasonably skillful manner, a contractor who undertakes to supply servants to perform services for another impliedly agrees to use due care in selecting, training and instructing the servants it supplies for that purpose.11 When Heidt’s agreed to furnish a guard to Sears it impliedly obligated itself to furnish a properly selected, trained and instructed guard. Sears was entitled to a jury charge to that effect and it was error to leave to the jury for its decision the question whether that obligation was a term of the contract.
*573Because the jury was not so instructed, and indeed because it was erroneously instructed that it was for the jury to determine whether Iieidt’s obligated itself to furnish a qualified guard, Sears is entitled to a new trial on its cross-claim against Heidt’s, which trial need not delay recovery by the Nashes of their judgment against all 3 parties.
In Adams v. F. W. Woolworth Company (1932), 144 Misc 27 (257 NY Supp 776), cited in the majority opinion, the eourt held the store liable on 3 separate grounds: not only because, so it said, a nondelegable duty had been breached, but also because it found that an employee of the store participated with the detective in the arrest and that the detective was an agent of the store itself. Woolworth’s nondelegable duty language was adopted by Ohio’s intermediate appellate eourts. Szymanski v. The Great Atlantic & Pacific Tea Co. (1947), 79 Ohio App 407 (35 Ohio Ops 177, 74 NE2d 205); Zentko v. G. M. McKelvey Company (1948), 88 NE2d 265. While the Woolworth case has been frequently cited, its nondelegable duty pronouncement was not the basis of- decision in any of the other cases listed in the annotation cited in the majority opinion: Principal’s liability for false arrest or imprisonment eaused by agent or servant; 92 ALR 2d 15, subheading: Private detective employed by agency under contract with defendant, p 61.
In all the eases listed in the annotation, ineluding Woolworth’s and the 2 Ohio eases, servants of the department store actively participated with the detective in the commission of the acts which brought about plaintiffs’ wrongful detention. See, e.g., W. T. Grant Company v. Owens (1928), 149 Va 906 (141 SE 860), and Schantz v. Sears, Roebuck & Company (1934), 12 NJ Misc 689 (174 A 162), affirmed (1935), 115 NJ Law 174 (178 A 768). In W. T. Grant Company v. Owens, supra, the court found the detective was the special agent of the store owner.
Restatement, Seeond, Torts, § 409. See Prosser, Law of Torts (3d ed), pp 480, 481, for a discussion of the general rule exempting an employer from liability for the torts of an independent contractor, and of the argument advanced by some that the injured party should be able to look to the whole “enterprise” and not only the particular *568contractor who under traditional analysis is responsible for his injury and the view that the large number of exceptions to the general rule of nonliability for the torts of an independent contractor “casts doubt upon the validity of the rule.” Professors Harper and James demonstrate the general rule is sound in some applications and needs to be retained. 2 Harper and James, Law of Torts, § 26.11.
Based on the past history of dealings between Heidt’s and Sears, it could have been anticipated that Keolian’s assignment at_ Sears would last anywhere from loss than a day or for a longer period np to perhaps 2 weeks, depending on Sears’ reaction to his services and the continuity of its apparently ever-changing need for guard service.
Whether one in the general employ of one master is also at the same time in the special employ of another master, i.e., has beeome the dual servant of both masters, is ordinarily a question for the trier of fact. In this ease the faets justify but one conclusion, namely, that Keolian was the servant of both Heidt’s and Sears.
In the following dual employment cases, both the general and special employer were held liable as a matter of law: Colorado & S. R. Co. v. Duffy Storage and Moving Company (1961), 145 Colo 344 (361 P2d 144); Gordon v. S. M. Byers Motor Car Co. (1932), 309 Pa 453 (164 A 334).
In the following cases that result was declared by a jury’s verdict: Baur v. Calic (1934), 166 Md 387 (171 A 713); Jackson v. Blue (CA 4, 1945), 152 F2d 67; Armit v. Loveland (CA 3, 1940), 115 F2d 308; Vance Trucking Company, Inc., v. Canal Insurance Company (D SC, 1966), 249 F Supp 33; Koontz v. Messer (1935), 320 Pa 487 (181 A 792); Grasberger v. Liebert & Obert, Inc. (1939), 335 Pa 491 (6 A2d 925); Siidekum v. Animal Rescue League of Pittsburgh (1946), 353 Pa 408 (45 A2d 59).
Prosser, Law of Torts (3d ed), p 476.
CL 1948, § 764.16 (Stat Ann 1954 Rev § 28.875).
They may, of course, seek contribution. CL 1948, § 600.2925 (Stat Ann 1962 Rev § 27A.2925).
The judge also charged: “Now, on the question of this contract, let’s assume for the moment that you were to find from the circumstances that there was an agreement that a qualified guard would be sent. The qualifications of the guard is a question for you to determine.”
Williston on Contracts (3d ed), § 10120; Italia Societa Per Azioni Pi Navigazione v. Oregon Stevedoring Company, Inc. (1964), 376 US 315, 318, 319 (84 S Ct 748, 11 L Ed 2d 732); Curtis v. A. Garcia y Cia. (CA 3, 1959), 272 P2d 235.
The entire requested instruction reads: “I instruct you that there was a duty on the part of Heidt’s to use due care in selecting, training and instructing the guards it sent to Sears. It is up to you to determine if Heidt’s breached this duty to Sears. If you find that Heidt’s did not use due care and that this was the proximate cause of the incident with Mrs. Nash, then you may require Heidt’s to reimburse Sears for any amount which Sears may be required to pay Mr. or Mrs. Nash in damages for that incident.”
The majority reject Sears’ assignment of error predicated on the failure to give such charge, stating: “proximate eause [see requested charge quoted above] has no bearing on the breach or nonbreaeh of the contract.” However, Professor Williston states that “a plaintiff can recover for breach of contract compensation for only such consequences as would follow such a breach in the usual course of events. It is generally said that the consequences must be ‘proximate and natural’ * * 5 Williston on Contracts. (Rev Ed), § 1344, p 3774. There is, as Professor Williston goes on to state, a difference between torts and contracts regarding what eonsequeneos are compensable.
Professor Corbin states that while the term “proximate causation” is used to describe the necessary nexus in contract as well as tort cases, the term “proximate” is “unsuited to the purpose of stating rules as to the recovery of damages. Its use should be abandoned, in both contract and tort cases. This is not to say, however, that the decisions in which it has been used in expressing legal doctrine can be disregarded.” 5 Corbin on Contracts, § 997, p 21.
It is apparent that Sears’ terminology was not so egregious as to preclude it from asserting the trial judge erred in his charge on this issue and in failing to give the requested charge.
“An agent is subject to liability to the principal if, having a duty to appoint or to supervise other agents, he has violated his duty through lack of care or otherwise in the appointment or super-, vision, and harm thereby results to the principal in a foreseeable manner. He is also subject to liability if he directs, permits, or otherwise takes part in the improper conduct of other agents.” Restatement, Second, Agency, § 405(2), p 251.