Wagner v. . Motor Truck Renting Corp. , 234 N.Y. 31 ( 1922 )

Rodgers Hagerty, Incorporated, had a subcontract which required it to do certain excavation work in Brooklyn. As an incident it was required to remove the dirt excavated to dumps some thirty blocks away. It had the necessary steam shovels and other tools but only some thirty-five trucks. Many more would be required. Therefore, on May 20th, 1918, it entered into a contract in writing with the Hagerty Motor Trucking Company, a concern engaged in the trucking business, for the purpose of securing them. It had made inquiries of the latter company "regarding the hiring of five ton motor trucks." It received an answer quoting a price of thirty dollars a day and in which the Hagerty Motor Trucking Company agreed to supply any number at that rate in good working condition, and to place a field office on the job with a representative to take charge of its needs. This offer was accepted. It then became necessary for the Motor Trucking Company itself to obtain trucks from others. Some of these came from another trucking company, the Motor Truck Renting Corporation, at a price fixed at $27.50 a day. The drivers of the trucks so obtained were in the general employment of the latter corporation. It was one of its trucks which caused the accident in question. At the time it was returning to the excavation having delivered a load at the dump. The negligence of the driver is not questioned. Nor is there any claim made that the deceased was guilty of contributory negligence. Upon a first trial the complaint was dismissed as to the Motor Truck Renting Corporation. From this action no appeal was taken. It was also dismissed as to the Hagerty Motor Trucking Company; but a verdict was obtained against Rodgers Hagerty, Incorporated. Upon an appeal the judgment against the latter was reversed as was also the judgment in favor of the Hagerty Motor Trucking Company, and a new trial was directed. Upon a new trial a verdict was again found against Rodgers Hagerty, Incorporated, and in favor of the Hagerty Motor Trucking Company. The trial judge set aside the verdict in favor of the plaintiff and dismissed the complaint. The Appellate Division has unanimously affirmed this action as to Rodgers Hagerty, Incorporated; but has reversed the judgment in favor of the Hagerty Motor Trucking Company and as to it has ordered a new trial. Obtaining permission to do so the plaintiff now appeals to this court. The Hagerty Motor Trucking Company also appeals and gives the required stipulation.

"Was the servant whose negligence injured a third party performing work for his master within the scope of his employment or was he loaned by his master to another to do the latter's business?" (Braxton v. Mendelson, 233 N.Y. 122., 123)

"As long as the employee is furthering the business of his general employer by the service rendered to another, there will be no inference of a new relation unless command has been surrendered, and no inference of its surrender from the mere fact of its division." (Charles v. Barrett, 233 N.Y. 127, 129.)

Concededly Rodgers Hagerty was not here the general employer. It was engaged in a building contract. It applies to a trucking concern for trucks. In furnishing them the Hagerty Motor Trucking Company was engaged in its own peculiar line of work. The contract between the two corporations consisted of an offer contained in a letter and its acceptance. The offer speaks of hiring five-ton trucks. It says that the writer will supply any number needed and put a representative on the job. The answer is that the proposal for "furnishing" auto trucks is accepted. Evidently here is no formal contract complete in itself which enables us definitely to fix the relationship of the parties. While there is no statement that the Hagerty Motor Trucking Company contracts itself to remove the material, the placing of a representative on the job is more or less inconsistent with the idea that the purpose the parties had in mind was the renting of the trucks and the abandonment of all control over them by their owner. The agreement that ten loads a night should be drawn and that the Motor Trucking Company should remain responsible for the neglect or laziness of its drivers is also inconsistent with that idea. The whole course of the proceedings tends to show at most a division of command. As this is so, the judgment in so far as it affects Rodgers Hagerty should be affirmed.

So should the judgment as regards the Hagerty Motor Trucking Company. For its own purposes, in pursuance of its need of trucks to carry on its business of trucking, it obtained the vehicle in question from another trucking corporation. The complaint alleges that this truck owned by the Motor Truck Renting Corporation (and perhaps the very name is significant), operated by one Delehanty in its general employ, "was hired by the day by virtue of a contract between the above named defendants to the defendant the Hagerty Motor Trucking Company," and this is admitted by the latter corporation in its answer. With Rodgers Hagerty the Motor Truck Renting Corporation had no relations. Its compensation came from its lessee. And for the truck and its driver it received $27.50 a day while for the work it did the Hagerty Motor Trucking Company received $30. The driver was told to report to Mr. Fogarty who represented on the job the Hagerty Motor Trucking Company. Other instructions seem to have been received by him from the representatives of Rodgers Hagerty, Incorporated. The Hagerty Motor Trucking Company people could lay him off from the job but could not discharge him. Rodgers Hagerty, Incorporated, laid out the route which the trucks were to follow. And they also could lay off the men. They also directed the men to the particular dump where they were to deliver their load. Both Rodgers Hagerty, Incorporated, and the Hagerty Motor Trucking company had so-called chasers whose duty it was to go up and down the line followed by the trucks and seeing that they were faithfully performing their work. The trucks were supposed to make ten trips a night and if they did not do so were docked. Gasoline and oil was supplied by the Motor Truck Renting Corporation and it made repairs in case of accident.

The contract between the two corporations is not described with particularity. Mr. Melish, the president of the Motor Truck Renting Corporation, says that he had an agreement to haul dirt from the army base to the dump down by the shore road, so many loads a day for $27.50. But a few lines later he says that the Hagerty Motor Trucking Company agreed to hire two trucks at the beginning and that eventually there were four trucks hired. Mr. Fogarty, the representative of the Hagerty Motor Trucking Company, says that the particular truck causing the accident was hired by him from the Auto Truck Renting Company.

In this condition of the record we think the jury might be authorized to find that the Hagerty Motor Trucking Company was at the time of the accident responsible for the torts of the driver of this truck. Indeed on the trial it seems to have been assumed that responsibility rested either on it or on Rodgers Hagerty. Its counsel moved to dismiss the complaint at the close because "the chauffeur Delehanty, who was in the general employ of the Motor Truck Renting Corporation, was in no way acting for or on behalf or in the prosecution of the work of the Hagerty Motor Trucking Company, was not under its control but was solely and exclusively under the control of Rodgers Hagerty." In his charge, without objection, the court said that if the plaintiff was entitled to a verdict, then the jury must decide whether Rodgers Hagerty or the Hagerty Motor Trucking Company was liable. "In other words, at the time this accident happened was Delehanty working for the trucking company or was he working for Rodgers Hagerty." No request was made that the jury might find neither defendant liable on the ground that the responsibility rested on the general employer. Nor in the brief submitted to us by the Hagerty Motor Trucking Company is any claim advanced that it should be relieved at the expense of the Motor Truck Renting Corporation. Conceding that either it or Rodgers Hagerty are responsible it is entirely devoted to the assertion of the claim that liability rests on the latter.

The judgment of the Appellate Division should be affirmed, with costs in favor of Rodgers Hagerty, Incorporated, against the plaintiff, and the order of the Appellate Division in favor of plaintiff against Hagerty Motor Trucking Company affirmed, and judgment absolute directed on the stipulation in favor of the plaintiff against the Hagerty Motor Trucking Company, with costs in all courts.