Braxton v. Mendelson

• Decision Date: 07 March 1922
• Citation: 233 N.Y. 122,135 N.E. 198
• Parties: BRAXTON v. MENDELSON.
• Court: New York Court of Appeals Court of Appeals

233 N.Y. 122

135 N.E. 198

BRAXTON

v.MENDELSON.

Court of Appeals of New York.

March 7, 1922.

Action by James T. Braxton, as administrator of Eugene Braxton, deceased, against Benjamin S. Mendelson. From judgment of the Appellate Division of the Supreme Court (194 App. Div. 898,184 N. Y. Supp. 910), affirming a judgment for defendant, plaintiff appeals.

Reversed, and a new trial granted.

See, also, 190 App. Div. 278,179 N. Y. Supp. 845; 196 App. Div. 895,187 N. Y. Supp. 928.

Appeal from Supreme Court, Appellate Division, First department.

George B. Class and John L. Class, both of New York City, for appellant.

William Dike Reed and William B. Shelton, both of New York City, for respondent.

ANDREWS, J.

Benjamin S. Mendelson was engaged in the trucking business. The Mutual McDermott Milk Company delivered milk to customers in the city of New York. For this purpose it used his trucks. One of them, through the alleged negligence of the driver, ran over and killed the deceased. Was Mendelson liable for damages? The Trial Term held that he was not. The Appellate Division reached the same conclusion. We think both courts were mistaken.

The rule governing such cases is a simple one: Was the servant, whose negligence injured a third party, performingwork for his master within the scope of his employment, or was he loaned by his master to another to do the latter's business? In the one case the general employer is liable for his torts. In the other he is not. But while the rule is clear its application is often difficult. The true relationship between master and servant may be obscured by circumstances seemingly contradictory.

Ordinarily no one fact is decisive. The payment of wages; the right to hire or discharge; the right to direct the servant where to go, and what to do; the custody or ownership of the tools and appliances he may use in his work; the business in which the master is engaged or that of him said to be a special employer-none of these things give us an infallible test. At times any or all of them may be considered. The question remains: In whose business was the servant engaged at the time?

As here, the answer may depend on a written contract. In the absence of technical phrases whose meaning is obscure, or of latent ambiguities making the subjectmatter of the contract doubtful, the court must construe it. Brady v. Cassidy, 104 N. Y. 147, 10 N. E. 131. Again there may be an express oral contract. This, too, the court should construe. Or the existence of an oral contract may be denied, or its terms disputed. If so, it is for the jury to pass upon its existence and provisions and under proper instruction to give effect to it. Patten v. Pancoast, 109 N. Y. 625, 15 N. E. 893. Or the contract, oral or written, may be ambiguous. Its construction may depend upon the intent of the parties in turn dependent on disputed facts. Then it becomes the duty of the jury again under proper instructions to determine this intent. Or there may be no express contract. One is to be implied from contradictory or disputed circumstances. Once more the jury must decide what was the actual relationship.

In the case before us fortunately we are relieved of many of these difficulties by the existence of a written contract, complete in itself containing no latent ambiguities, no words of technical import. Nor is it claimed that it was a mere blind intended to relieve either party of responsibility that otherwise would be theirs. In good faith it fixed their rights and their duties. It was between Mendelson ‘as contractor’ and the corporation. Then as its primary purpose and object it provides that this contractor is to ‘do all the trucking work for the said corporation.’ This is the typical case of a general employer making a contract to do the work of another as an independent contractor. There is nothing in the contract which alters or qualifies the relationship so assumed. What follows simply fixes the way in which the work shall be done, and the compensation. The corporation is to assume no responsibility for breakdown or damage to the...