Butler v. Townsend

• Decision Date: 20 March 1891
• Citation: 126 N.Y. 105,26 N.E. 1017
• Parties: BUTLER v. TOWNSEND et al.
• Court: New York Court of Appeals Court of Appeals

126 N.Y. 105

26 N.E. 1017

BUTLER

v.TOWNSEND et al.

Court of Appeals of New York.

March 20, 1891.

Appeal from supreme court, general term, second department.

RUGER, C. J., and ANDREWS and O'BRIEN, JJ., dissenting.

Esek Cowen, for appellant.

Charles M. Stafford, for respondent.

FINCH, J.

The evidence in this case shows that the process of repairing the exterior hull of a vessel placed in a drydock for that purpose requires the skill and labor of at least two classes of workmen, known in the business as ‘lumpers' and ‘caulkers.’ The duty of the former is said to be to erect the staging around the vessel, grave the vessel, and put on the felting, if necessary, and run the metal; and when this work is done that of the caulkers follows. The lumpers consist of eight or more men known as the ‘lump gang,’ one of whom acts as their foreman. There were two of these ‘gangs' in Brooklyn, and one or the other of them was always employed in doing that kind of work. The foreman or ‘boss' of the lumpgang at the scene of the accident was Kennovan. He testifies that he made a contract with the defendants to do the lumper's work upon the vessel, which included the erection of the staging, for four cents a sheet of the metal run on. He said: ‘It is the understanding with us men that we made a contract with the defendants to do this lumping work you have spoken of. After we had performed that work we entered upon the duties of a caulker.’ He added that for those duties he was paid caulker's wages, by the day. His contract as a ‘lumper’ he further described thus: ‘My contract with Townsend and Edgett was to erect the scaffold, and to grave the vessel, put on the felt, and run the metal. That included the whole thing, and I received for that four cents for every sheet that went on the ship. That was for the whole gang, as I contracted for the whole gang. That is my usual custom. In this particular case I agreed to put up a good scaffold.’ Under this agreement, which is in no respect disputed, it is clear that Kennovan and his associates, while performing their contract, were independent of the control of the defendants, and not subject to their orders. Kennovan could hire or discharge his men, dictate who should work on the job and who should not, and assign to each his place and specific duties. The defendants could do neither. Their rights were under the contract which they had made, and that committed the whole lumper's work to Kennovan and his associates, who, while performing their contract, could employ or discharge whom they pleased, and subject to no orders or directions of the defendants. These lumpers erected the staging. A single plank was defective, and broke with the weight of the men upon it, one of whom, not belonging to the lump gang, was fatally injured, and for his death this action has been brought. I think upon the evidence given that the lumpers who erected the staging, while employed by the defendants, were not, in a legal sense, their servants. One may be employed without being a servant, and have an employer who is, nevertheless, not the master. King. v. Railroad Co., 66 N. Y. 181. The relation exists where the employer selects the workman, may remove or discharge him for misconduct, and may order not only what work shall be done, but the mode and manner of performance. Blake v. Ferris, 5 N. Y. 48;Town of Pierrepont v. Loveless, 72 N. Y. 214, 215; Wood, Mast. & S. § 314. That test, applied to the relation between Kennovan and the defendants, shows that the lumpers were independent contractors, and not servants. There were two such gangs, each under a foreman or ‘boss,’ who contracted for and controlled their skilled labor. The foreman admitted or excluded men, diminished or increased their number, and assigned them their places and tasks. The defendants could make requests, or give advice, but could issue no effective orders as to the mode and manner of doing the work. They owed the separate workmen no separate wages, and no wages as such. Their liability was to Kennovan for a contract price. How much of that was payable to each member of the gang the defendants could not know, or in any manner determine. The ground upon which the trial court held that the lumpers were servants of the defendants appears to have been that the defendants directed their own foreman to ‘look after the safety of the scaffold.’ By the contract Kennovan was to build a good one. That the defendants kept a watch and an oversight over the contractors to see that they properly fulfilled their contract does not affect, still less change, the actual relation of the parties. Slater v. Mersereau, 64 N. Y. 138. The case, therefore, is governed by the doctrine of Devlin v. Smith, 89 N. Y. 470, where it was held that one who put his own servants upon a scaffold for the construction of which he had contracted with a skillful and experienced builder was not liable for an injury resulting from negligence in its construction; that he was at liberty to accept it without inspection; and was not in fault for putting his own workmen upon it. Here the staging was erected by skilled and experienced workmen, who always did that work in the dock-yard, who contracted to put up a good scaffold, and who were to test it by first using it, and exposing their own lives upon it. It was not negligence for the defendants to accept it as perfect, and expect their own servants to use it. It is true that the plank for the staging, under the customary rule, were to be and were furnished by the defendants, but the evidence shows that an abundant supply of sound and suitable material was so furnished, and that the particular plank which broke had been examined and condemned, and marked as unsafe, and that...