¶ 59 In support of his independent contractor argument, Wilcox cites Hartell v. T.H. Simonson & Son Company, 218 N.Y. 345, 113 N.E. 255 (1916). In Hartell, a large lumber truck driven by a Durr employee collided with a wagon operated by Edward Hartell, resulting in the death of Hartell.
It discloses that the American Bridge Company loaned the crane and its operator to the Johnson Company and surrendered all dominion and control thereof and that the latter assumed complete control for the purpose of doing its own work. It also discloses that the American Bridge Company had no interest in or concern with, and was not convenienced or favorably affected by the doing of that work. Under these circumstances the operator of the crane became the ad hoc servant of the Johnson Company, and the American Bridge Company may not be cast in liability for his negligence while acting for and on behalf of the Johnson Company. The factual base for nonliability on the part of the American Bridge Company is stronger here than was the situation in respect of the Paramount Public Corporation in Irwin v. Klein ( 271 N.Y. 477). That case required a dismissal of the complaint herein as to the American Bridge Company. In Hartell v. Simonson Son Co. ( 218 N.Y. 345, 349) it is stated: "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 employer enters into a contract to do the work of another, as an independent contractor, his servants do not become the servants of the person with whom he thus contracts, and the latter is not liable for their negligence.
The basis of the defendant's liability is, of course, that although the chauffeur was in the general employment of the garage company, the evidence shows that he had become, pro hac vice, the servant of the defendant. That a sufficient foundation was laid for holding the defendant on this well-established basis of liability seems perfectly clear under a long line of authorities, among which may be mentioned Hartell v. Simonson Son Co. ( 218 N.Y. 345); Schmedes v. Deffaa (214 id. 675); Standard Oil Co. v. Anderson ( 212 U.S. 215, 220-222); and Howard v. Ludwig ( 171 N.Y. 507). In Hartell v. Simonson Son Co. ( supra) the general employer sent a driver with a team of horses to the defendant in that case, with instructions to take such orders as were given to him by defendant, and after the day's work to come back to the stable.
Continuing, Judge MILLER adverts that BARTLETT, J., in Kellogg v. Church Charity Foundation ( 203 N.Y. 191), referring to the opinion of Mr. Justice MOODY in the Standard Oil Co. case, said: "Where one furnishes another with men to do work for him and places them under his exclusive control in its performance those men become pro hac vice the servants of him to whom they are furnished and he is responsible for their negligence because the work is his work, and they are his workmen for the time being." The ruling in the above Schmedes v. Deffaa case has been very recently (December, 1934) made the basis of the decision in Irwin v. Klein ( 243 A.D. 23) by the Appellate Division, First Department, in which the court, further referring to the Kellogg v. Church Charity case and Hartell v. Simonson Sons ( 218 N.Y. 345), thus concisely reiterates the rule: "The principles of law which control in this class of actions are well settled. A servant in the general employ of one person, who is temporarily hired or loaned to another person to do the latter's work, becomes, for the time being, the servant of the hirer, who is liable for his negligence.
The New York Court of Appeals ruled that Franklyn had transacted business within New York within the meaning of § 302(a)(1) both directly ( see part B below) and through Nash as his agent. The court went to some lengths to invoke traditional agency notions, observing that "'[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'." 26 N.Y.2d at 19, 308 N.Y.S.2d at 341, 256 N.E.2d at 509 (quoting Hartell v. T.H. Simonson Son, 218 N.Y. 345, 349, 113 N.E. 255, 256 (1956)). Thus the court concluded that Nash's activities during the auction were in reality done as an agent of Franklyn.
In spite of its ownership of the ambulance the hospital was exonerated, though in New York hospitals are liable for such torts. Yet in Hartell v. T.H. Simonson, 218 N.Y. 345, 113 N.E. 255, where the defendant owned the truck which did the damage and another person had supplied the horse and driver, the owner was held. In spite of the statement in the opinion that the situation was distinguishable from that in Kellogg v. Church Charity Foundation, supra, 203 N.Y. 191, 96 N.E. 406, 38 L.R.A., N.S., 481, Ann.Cas. 1913A, 883, we have been unable to discover in what that distinction lay, and, if forced to choose, we should feel obliged to follow the later decision.
Accordingly, Finley was the servant of the Railroad. See Wyllie v. Palmer, 137 N.Y. 248, 33 N.E. 381 (1893); Hartell v. T. H. Simonson Son Co., 218 N.Y. 345, 113 N.E. 255 (1916); In Matter of Goodman v. Stone and Webster Engineering Corporation, 11 A.D.2d 558, 199 N.Y.S. 2d 770 (3rd Dept. 1960).
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". ( Hartell v. Simonson Son Co., 218 N.Y. 345, 349.) To say that Mr. Nash, because he was Parke-Bernet's employee, acted solely as its agent, ignores the realities of what he actually did on the night of the sale.
It is not very material, so far as the defendant's liability is concerned, how it came by the instrumentalities with which it carried on its lumber business." Hartell v. Simonson Son Co., 218 N.Y. 345, 113 N.E. 255, 256. In a Massachusetts case a driver in the general employ of an ice company was lent for hire by the ice company with a pair of horses and a wagon to a coal company, by which he was employed to load and deliver coal, etc., and was sometimes given a helper in loading and making deliveries. He took his orders from the office of the coal company and was told by one of the clerks there where to deliver his loads.
He may then enter into an agreement with another. If that other furnishes him the men to do the work and places them under his exclusive control in the performance of it, those men became pro hac vice the servants of him to whom they are furnished." Standard Oil Co. v. Anderson, 212 U.S. 215, 221, 29 Sup. Ct. 252; Scribner's Case, 231 Mass. 132, 120 N.E. 350; Coughlan v. Cambridge, 166 Mass. 268, 277, 44 N.E. 218; Hertell v. Simonson Co., 218 N.Y. 345, 13 N.E. 255. In Scribner's Case, supra, plaintiff was in the general employ of an ice company; his services were temporarily procured from the ice company by a coal company though he continued to receive his wages from the ice company, but the latter had no control or direction over his work while he was with the coal company, and he took all orders from the latter company.