Mulchey v. Methodist Religious Society

Decision Date17 October 1878
Citation125 Mass. 487
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
PartiesJames Mulchey v. Methodist Religious Society & others

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 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 his negligence or for that of persons employed by him; and that in this action of tort, in the nature of an action on the case, the only ground of claim against the society arose from the fact that Barber and Sleeper were its authorized agents to have the work done of painting the church; and that the party injured by the act or negligence of the agents, there being no evidence of any action of the principal other than the acts of the agents, might elect to sue either, but could not maintain an action against both jointly.

The judge declined to give the instruction requested; and instructed the jury that, inasmuch as the defendants assumed the duty of furnishing this staging upon which this work was to be done by Needham and his workmen, they undertook to furnish a safe staging for the purpose, and it made no difference to the plaintiff in this case whether they did it by letting out the job to a contractor or by employing persons to do the work by the day; that they agreed to furnish a staging, had a staging built, and offered that staging to Needham to work upon as a suitable staging, and if it was defective in its construction in any such way or degree as to show that it was not built with that measure of prudence and care which a prudent man would exercise in building such a staging in...

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90 cases
  • Story v. Concord & M. R. R.
    • United States
    • New Hampshire Supreme Court
    • July 27, 1900
    ...are not jointly liable for an injury, because not jointly negligent does not establish that they are not severally liable. Mulchey v. Society, 125 Mass. 487; Parsons v. Winchell, 5 Cush. 592; Shear. & R. Neg. §§ 244, 248; Busw. Pers. Inj. § 31. That the parties are not joint tort feasors, s......
  • Royer v. Rasmussen
    • United States
    • North Dakota Supreme Court
    • June 15, 1916
    ... ... Winchell, 5 ... Cush. 592, 52 Am. Dec. 745; Mulchey v. Methodist ... Religious Soc. 125 Mass. 487; Western U. Teleg. Co ... ...
  • Basabo v. Salvation Army, Inc.
    • United States
    • Rhode Island Supreme Court
    • December 10, 1912
    ...liable for injuries to third parties arising from the negligence of agents and servants of the defendants. Mulchey v. Methodist, etc., Soc'y et al. (1878) 125 Mass. 487; Davis v. Central, etc., Soc'y (1880) 129 Mass. 367, 37 Am. Rep. 368; Smethurst v. Barton Square Church (1889) 148 Mass. 2......
  • Stevens v. United Gas & Electric Co.
    • United States
    • New Hampshire Supreme Court
    • February 7, 1905
    ...Mass. 513, 25 N. E. 978, 9 L. R. A. 640, 23 Am. St. Rep. 846; Phillips v. Library Company, 55 N. J. Law, 307, 27 Atl. 478. In Mulchey v. Society, 125 Mass. 487, the defendant employed one Needham as an independent contractor to paint the ceiling of its church; having already had a staging f......
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