Opinion
April 4, 1912.
Benjamin C. Loder [ William B. Davis and Amos H. Stephens with him on the brief], for the appellant.
William E. Buckley, for the respondent.
Present — HIRSCHBERG, BURR, THOMAS, CARR and WOODWARD, JJ.
The defendant appeals from a judgment entered against it on the verdict of a jury in an action brought to recover damages for personal injuries. Plaintiff was injured while standing on a public highway in the borough of Brooklyn on May 18, 1909. He was run down by an autotruck owned by the defendant, the Autocar Sales Company, and while it was being operated by a driver who was in the general employment of said defendant. No question is raised on this appeal as to the negligence of the manner of operation of the autotruck at the time of the accident. The established facts are as follows: The defendant appellant was in the business of selling auto-trucks. As a part of its business it kept drivers who operated such trucks for the purpose of demonstrating their effectiveness to intending purchasers. There were negotiations pending between it and a large dry goods firm known as Greenhut Co. relative to the purchase of some of said trucks. Greenhut Co. had some question as to the effectiveness of the use of such trucks for the delivery part of their business. This defendant appellant offered to demonstrate by one of its trucks its general effectiveness for the business of Greenhut Co. The autotruck in question was sent by the orders of the defendant appellant to Greenhut Co's. store, and was laden with various packages to be delivered to the customers of the dry goods house. One of the employees of the dry goods firm went along on the autotruck and gave instructions as to the direction in which it should be driven and as to the houses at which it should stop. The actual operation of the machine was at all times under the personal control of the driver, who was in the general employment of the defendant appellant. As the truck was turning a corner, it was so negligently operated that it came into contact with the plaintiff and injured him while he was lawfully on a public highway. At the close of the case the complaint was dismissed as to the defendant Greenhut Co., and the question of the negligence of the defendant appellant was submitted to the jury, which rendered a verdict in favor of the plaintiff in the sum of $2,200. The defendant appellant contends that, by the aforesaid arrangement between it and Greenhut Co., it had transferred to the possession and use of said Greenhut Co. the autotruck and the services of the driver, and that said driver, while partaking in the delivery of the packages of the dry goods house, was ad hoc a servant of Greenhut Co. and not a servant of the defendant appellant. Many cases are cited by the appellant on this complicated question of servantship ad hoc, but I think none of them is applicable to this precise situation. It is quite true that the operator of the autotruck was engaged in the work of participating in the delivery of various packages of Greenhut Co. at the time of the accident. While in one sense he was doing this work for Greenhut Co., yet the doing of this work was but incidental to a larger work which he was doing for the defendant appellant, and which was the main purpose of his operating the machine. That is to say, he was demonstrating by actual experience on behalf of the defendant appellant the effectiveness of its autotruck, for the purpose of inducing, for the benefit of his general employer, the purchase either of that truck or other trucks by Greenhut Co. from his general employer. It seems to me unquestionable that during every part of this performance he was primarily and particularly the servant and agent of his general employer. To hold otherwise it would follow that every time one takes passage in a motor car when it is under demonstration for the purpose of inducing a sale or purchase he shall become liable for the negligent operation of the car by the driver furnished by the intending vendor. This would be going entirely too far.
The judgment and order should be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.