McNamara v. Leipzig

• Decision Date: 25 November 1919
• Citation: 227 N.Y. 291,125 N.E. 244
• Parties: McNAMARA v. LEIPZIG et al.
• Court: New York Court of Appeals Court of Appeals

227 N.Y. 291

125 N.E. 244

McNAMARA

v.LEIPZIG et al.

Court of Appeals of New York.

Nov. 25, 1919.

Action by Stephen McNamara, as administrator of Philip McNamara, deceased, against Abraham Leipzig and others. A judgment for plaintiff entered upon a verdict was affirmed by the Appellate Division (180 App. Div. 515,167 N. Y. Supp. 981), and defendant named appeals.

Reversed.

Hiscock, C. J., and Chase and Andrews, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, First department.

Alfred W. Meldon, of New York City, for appellant.

William S. Evans, of New York City, for respondent.

COLLIN, J.

The action is to recover damages for the alleged negligence of the defendant by which the death of plaintiff's intestate was caused. Code of Civil Procedure, §§ 1902-1905. The judgment of the Trial Term consequent upon the verdict in favor of the plaintiff was affirmed by the nonunanimous decision of the Appellate Division.

Under the exceptions and the briefs of counsel the appeal presents the single question whether or not the evidence tended to prove the liability of the defendant for the negligence of the chauffeur in so driving the automobile in which the defendant was against the plaintiff's intestate as to cause his death. The evidence concerning the question is harmonious and without contradiction. The defendant was in the automobile under the conditions: An agreement in writing existed between the Concord Garage Company, the owner, or the representative of the owner, of the automobile, and the defendant, whereby the company rented the automobile and the service of the chauffeur to the defendant for the term of three months, to be used by him during the term at any hour of the day or night he desired; the company agreed ‘to engage and furnish a chauffeur to operate and run said automobile during said period at its own cost and expense’ and ‘to pay all expenses for gasoline used in propelling said automobile, together with any and all expenses for repairs or supplies used in said automobile,’ also to procure insurance covering the defendant from all liability by reason of accidents, injuries of any kind or from any cause whatsoever; the defendant agreed ‘to pay for the use of the aforesaid automobile and services of a chauffeur during the period’ a designated sum. The performance of the agreement had been entered upon and was being carried out at the time of the accident. In the performance the defendant exercised no control in the selection of the chauffeur or over him, his wages, or the car, other than to direct him when and where to come with the car for the defendant and where to transport him. The car when not in the use of the defendant was kept in the garage of the company, was there cared for and supplied with the necessaries by the company, and there the chauffeur received calls of the defendant for the use of the car and the chauffeur. In the matters of coming to and leaving the defendant and of taking him to the places directed by him the chauffeur was under his directions. The defendant paid for the chauffeur's luncheon when using him at luncheon time and paid the cost of having the car watched when in the defendant's use, and it was necessary for the chauffeur as well as defendant to leave it unattended. The accident happened upon a street specifically designated by defendant to be taken by the chauffeur.

In virtue of those facts this case falls into a class concerning which established legal principles are applicable and decisive. The defendant was not liable for the death of the intestate unless the facts tended to prove that the negligent chauffeur in driving was in a legal sense a servant of the defendant. There is not evidence that the defendant actively interfered with and caused the manner of driving, or had knowledge or notice that the chauffeur was incompetent or careless. It was essential, therefore, in order to establish a liability against the defendant, that the relation of principal and agent, or that of master and servant, should exist. King v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 181, 23 Am. Rep. 37;Stevens v. Armstrong, 6 N. Y. 435. The relation of principal and agent obviously did not exist. The liability of the defendant depends on the doctrine of the liability of a master for the acts of his servant done in the course of his employment. The relation of master and servant is created by contract, express or implied. Of the elements which may constitute it, those that the servant must, in the course of the employment, be doing the work of the master under the will, direction, and control of the master throughout all the details of the work are essential. Schmedes v. Deffaa, 214 N. Y. 675, 108 N. E. 1107, decided upon the dissenting opinion of Miller, J., in the court below, 153 App. Div. 819,138 N. Y. Supp. 931;Higgins v. Western Union Tel. Co., 156 N. Y. 75, 50 N. E. 500,66 Am. St. Rep. 537;Scribner's Case, 231 Mass. 132, 120 N. E. 350;Butler v. Townsend, 126 N. Y. 105, 26 N. E. 1017. A servant may, with his consent, through the agreement of his master, become for the occasion and time and to the extent agreed upon the servant of another. A master may loan or let to another a servant in his general employment, with the consent of the servant, as he may his implements, in such manner that the servant does the work of the other under the other's exclusive control, and therefore is for the occasion and time the servant of the other. On the other hand, the master may agree with another that the master shall himself perform the work of the other through his own servant, the master retaining the service, direction, and control of the servant. To determine whether a given case falls within the one class or the other we must inquire whose is the work being performed. Schmedes v. Deffaa, 214 N. Y. 675, 108 N. E. 1107;Hartell v. Simonson & Son Co., 218 N. Y. 345, 113 N. E. 255;Standard Oil Co. v. Anderson, 212 U. S. 215, 29 Sup. Ct. 252, 53 L. Ed. 480; Donovan v. Laing, [1893] 1 Q. B. 629. In the Hartell Case Judge Cuddeback said:

‘A servant in the general employment of one person, who is temporarily loaned to another person to do the latter's work, becomes, for the time being, the servant of the borrower, who is liable for his negligence. But if the general...