Thorn v. Clark

188 A.D. 411, 177 N.Y.S. 201, 1919 N.Y. App. Div. LEXIS 7783

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 30, 1919
• Status: Published

Opinion

Cochrane, J.:

Evidence was developed bearing on the question as to whether Laravie in repairing the automobile was doing so as the servant of the proprietors of the garage where he worked. I shall assume as claimed by the respondent that such was not the case.

Starting with this assumption I am of the opinion that no liability has been established against the defendant Clark, the owner of the automobile. Such liability must depend on the relationship of master and servant between Clark and Laravie. It seems to be quite well established that in making repairs like those in question such relationship does not exist. Laravie was an independent contractor. (Hexamer v. Webb, 101 N. Y. 377; Perry v. Fox, 93 Misc. Rep. 89; Woodcock v. Sartle, 84 id. 488, and cases there cited; Matter of Litts v. Risley Lumber Company, 224 N. Y. 321; Matter of Rheinwald v. Builders’ Brick & Supply Company, 223 id. 572, the facts in which case are stated in 168 App. Div. 425.)

.In Hexamer v. Webb (supra) it was said: “The test to determine whether one who renders service to another does so as a contractor or not is to ascertain whether he renders the service in the course of an independent occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished. (Shearm. & Redf. on Neg. § 76.)” Applying that test to this case the action must fail as to the owner of the automobile. Laravie in repairing it represented the will of the owner only as to the result of his work, the means by which he accomplished such work being left to his own discretion. It is a most common occurrence for the owner of an automobile to have it repaired at a garage. The accomplishment of that result and work incidental thereto, such as testing the automobile, is the work of an independent contractor and not that of a servant. It makes no difference that the work as in this case may have been done by a particular employee in the garage acting independently and for himself.

In Matter of Litts v. Risley Lumber Company (224 N. Y. 321, 324) there is an instructive discussion illustrating the distinction between an employee and an independent contractor.

The fact that the owner Clark directed Laravie to “ take the car out ” does not make Clark liable. Either Laravie took the automobile out to test it or he was using it for his own purposes. In either event no liability rests on the owner.

As to the defendant Laravie we see no reason for disturbing the judgment.

All concurred.

Judgment and order reversed and complaint dismissed, with costs, as to the defendant Clark, and judgment and order affirmed, with costs, as to the defendant Laravie.