125 Mass. 487 (Mass. 1878), Mulchey v. Methodist Religious Society

Citation:125 Mass. 487
Opinion Judge:Gray, C. J.
Party Name:James Mulchey v. Methodist Religious Society & others
Attorney:H. W. Paine & C. F. Choate, for the defendants. G. A. Somerby, for the plaintiff.
Judge Panel:Gray, C. J. Colt & Lord, JJ., absent.
Case Date:October 17, 1878
Court:Supreme Judicial Court of Massachusetts
 
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Page 487

125 Mass. 487 (Mass. 1878)

James Mulchey

v.

Methodist Religious Society & others

Supreme Court of Massachusetts

October 17, 1878

Argued November 20, 1877

Suffolk.

Exceptions overruled.

H. W. Paine & C. F. Choate, for the defendants.

G. A. Somerby, for the plaintiff.

Gray, C. J. Colt & Lord, JJ., absent.

OPINION

Gray, C. J.

This is an action of tort, brought against a religious society and against Barber and Sleeper, to recover for injuries suffered by the plaintiff by reason of the fall of a staging upon which he was standing while engaged in painting the ceiling of a church belonging to the society.

By a contract made by the society, acting through Barber and Sleeper as its committee and authorized agents, with Needham, in whose employ the plaintiff was, the society employed Needham to paint the whole of the inside of the building, for a gross sum, and not subject to the direction or control of the defendants, except as to the quality of the work and the time within which it was to be performed; and the society undertook to erect and remove the staging to be used by the painters.

The society, acting through the same committee, employed Curtis, a carpenter and builder of their own selection, by a contract

Page 488

for a gross sum, and not subject to the direction or control of the defendants, to erect and remove the staging and supply all the materials and labor required for this purpose.

There was evidence tending to show that Needham did not and could not know, from the appearance or from examination of the staging, whether it was or was not strong enough for his workmen to go upon to paint the church. There was no evidence that the defendants took any part in erecting the staging, or in directing its erection, beyond making the contract with Curtis; or that they at any time made any inspection of the staging; or that they were guilty of any negligence in employing Curtis to erect it. The sole ground upon which the plaintiff seeks to recover is, that the staging erected by Curtis was insufficient.

The defendants requested the judge to instruct the jury that if Curtis was employed by an entire contract, for a gross sum and in an independent operation, and not subject to the direction and control of his employers, he was not the defendants' servant, and they were not responsible for...

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