Benjamin Freibaum, an Infant, by Louis Schwartz, his Guardian ad Litem, Respondent, v. James C.Freibaum, Appellant

Benjamin Freibaum, an Infant, by Louis Schwartz, his Guardian ad Litem, Respondent, v. James C. Brady, Appellant. First Department, March 10, 1911. Motor vehicles — negligence — injury to pedestrian — when owner loaning car not liable. The owner of a motor car is not liable for personal injuries caused by it merely because he owned the car, or because the chauffeur driving it was employed by him, if at the time the chauffeur was not engaged in the owner’s business. Thus, where two brothers owned motor cars and agreed that either could use the car of the other as he desired, the owner of one car is not liable for injuries to a pedestrian occurring through the negligence of the chauffeur while the car was being used by his brother in his own business, even if the chauffeur driving the car were employed and paid by the owner. Servants who are employed and paid by one person may nevertheless be ad hoa the servant of another in a particular transaction. Appeal by the defendant, James C. Brady, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of April, 1910, upon the verdict of a jury for $5,000, rendered by direction of the court upon a special verdict, and also from an order entered in said clerk’s office on the 2d day of May, 1910, denying the defendant’s motion for a new trial made upon the minutes. Frank V. Johnson, for the appellant. Joseph H. Kohan, for the respondent. [MAJORITY — McLaughlin, J.:] McLaughlin, J.: Plaintiff sustained personal injuries by a motor car owned by the defendant running into him, and brought this action to recover therefor on'the theory that the defendant was responsible for the chauffeur’s negligence. He had a recovery, and defendant' appeals. The facts established at the trial are sufficient to sustain the finding of the jury that the plaintiff was free from negligence, and that his injuries were caused solely by the negligence of the chauffeur, but something more than this had to be established before defendant could be held liable. He could not be made liable simply because lie owned tlio car, or because the chauffeur was employed by him, if at the time he was not engaged in defendant’s business. (Cunningham v. Clark, 127 App. Div. 580 ; Maher v. Benedict, 123 id. 579 ; Clark v. Buckmdbile Co., 107 id. 120; Stewart v. Baruch, 103 id. 577.) There is very little dispute between the parties as to the material facts. The defendant and his brother, Nicholas F., each owned a motor car, substantially alike except as to color. Both cars were kept in the Automobile Realty Company Garage, and by a mutual arrangement each had permission to use the other’s car. Each had been accustomed from time to time when he needed a chauffeur to communicate that fact to the Automobile Realty Company, which”" would procure one from the New York Transportation Company, and bills for his services would be rendered by it to the one who ordered him. At the time of the accident the defendant lived at Woodmere, L. I., while his brotlur and wife were stopping at the St. Regis Hotel in New York c.ty. The accident, occurred a little after ten o’clock in the evenng on the 21st of January, 1908. During that day some one otier than the defendant, acting for Mi-, or Mrs. Nicholas F. Brady, lotified the realty company or the transportation company that the] required a chauffeur. In response to the notice the transportation ompany sent one of its chauffeurs by the name of Curran to the garage where the cars were kept, and the defendant’s car was delivered to him, the other one being out of repair. As directed, he drove the car to the St. Regis Hotel, and after taking Mrs. Brad* on a shopping tour Avas directed by her to return about eight o’chck in the evening to take Mr. Brady and herself to the theatre, AA'iich he did. On leaving them at the theatre he Avas told to return a ten-forty-five, and it was while on his way back to the theatre tha the accident occurred. The transportation company rendered a bill for the services of the chauffeur to Nicholas F. and he paid tb same. There is n-thing in the record to sustain the finding of the jury that the chuffeur at the time the accident occurred was acting as an emplyee of the defendant. The defendant did not employ, pay, director control him in any way; in fact, he did not know that his car Avasbeing used at the time. His only connection with the accident wa¡the fact that he owned the car and permitted his brother to use it. I know of no principle upon which, .under such circumstances, lie can be held liable; on the contrary, the authorities already cited are the other way. But, even if it be assumed that the chauffeur was employed and paid by the defendant, I do not think that would make him liable. The arrangement simply amounted to the loaning of the car, with the driver, to the brother for his own use, and purposes. The defendant would not be chargeable with the negligence of the driver while thus running the car, for the reasons stated by Lord Cockburn in O'Rourke v. White Moss Colliery Co. (L. R. 2 Com. Pl. Div. 205)' as follows: “ When one person lends his servant to another "for a parü/yjJar employment, the servant for anything done in that particular employment must be dealt with as the servant of the man to whom he is ’lint, although he remains the general servant of the person who lent him.” This authority is cited with approval in Higgins v. Western Union Tel. Co. (156 N. Y. 75), where the same principle is stated by Judge O’Brien, as follows : “ But the doctrine of respondeat superior applies only when the relation of master and servant is shorn to exist between the wrongdoer and the person sought to be ciarged for the result of the wrong, at the time and in respect to 'he very transaction out of which the injury arose. The fact that he party to whose wrongful or negligent act an injury may be tracel was, at the time, in the general employment and pay of anothc person, does not necessarily make the latter'the master and respmsible for his acts. The master is the person in whose business he kengaged at the time, and who has the right to control and direct his londuct. Servants' who are employed and paid by one person may, levertheless, be ad hoe the servants of another in a particular transactr.u, and that too, when their general employer is interested in the work” It is unnecessary to cite the numerous authorites in this State to the same effect, but see Wyllie v. Palmer (137 N.Y. 248); McInerney v. D. & H. Canal Co. (151 id. 411) ; Casey v. Dais & furber Machine Co. (138 App. Div. 396); Fish v. Coolidge (4'dd. 159). When the foregoing rule is applied to the facts here, it it once becomes apparent, as it seems to me, that the defendant was'n no way responsible for the accident. The chauffeur at the the the accident occurred was engaged in the business of the deéndant’s brother. He was subject to his orders. He alone could control and direct his movements. It follows, therefore, that the judgment and order appealed from must be reversed and a new trial ordered, with costs to appellant to abide the event. Ingraham, P. J., Laughlin, Scott and Miller, JJ., concurred. Judgment and order reversed, new trial ordered, costs to appellant to abide event.