Emmerson v. Fay

• Decision Date: 03 December 1896
• Court: Virginia Supreme Court
• Parties: EMMERSON. v. FAY.

26 S.E. 386

94 Va. 60

EMMERSON.

v.FAY.

Supreme Court of Appeals of Virginia.

Dec. 3, 1896.

Master and Servant—Independent Contractor —Liability for Negligence of Employes—Trial.

1. A person employed to construct a building, with materials to be furnished by the owner, and according to certain plans, who was to receive in payment a per diem for himself and the other men engaged on the work, who were to be hired and paid by him, is an independent contractor, and occupies the relation of master to such employés, for whose negligence the owner is not liable; the work contracted for being lawful.

2. The question of what constitutes an independent employment, under which the relation of master and servant does not exist, is one for the court, which should define its requisites in the instructions.

Appeal from hustings court of Portsmouth.

Action by Sarah Fay against John C. Emmerson for personal injuries. Judgment for plaintiff, and defendant appeals. Reversed.

Watts & Hatton, for appellant.

Burroughs & Bro., for appellee.

HARRISON, J. From the evidence set out in the record it appears that the plaintiff was injured by an iron ball falling from the roof of a lumber dry kiln being erected on a lot adjoining the street along which she was walking.

The material and uncontradicted facts are that W. B. Collona, a contractor and builder, made an agreement with the defendant, John C. Kmmerson, the owner of the property, to do the woodwork on the dry kilns. The defendant was to furnish the materials, and the contractor was to employ the labor, superintend the same, and erect the buildings according to plans furnished by the patentee of the kilns. The measure of compensation received by the contractor was a per diem for himself and the hands employed by him, the amount due under the contract being paid by the defendant in two payments, one of $200, before the work was finished, and the balance after its completion. It appears that the defendant did not know the men employed on the work, and assumed no control over them; that they were employed and discharged by the contractor, who alone controlled and directed them in their work, and received a profit on their labor. The building was situated seven feet from the street, and Peter Showard, one of the men employed by the contractor, was on the roof, handling the iron ball in question, when it slipped and fell, with the result mentioned.

The sole question presented by the record is whether or not the owner of the building is liable in damages to the plaintiff for the injury sustained by her. The answer to this question depends upon the relation, if any, that Peter Showard, the man who dropped the ball, bore to the defendant-was he the servant of the defendant or of the contractor? In other words, was W. B. Collona an independent contractor or not?

As a general rule, where a person is employed to perform a certain kind of work which requires the exercise of skill and judgment as a mechanic, the execution of which is, because of his superior skill, left to his discretion, without restriction upon the means to be employed in doing the work, and he employs his own labor, which is subject alone to his control and direction, the work being executed either according to his own ideas or in accordance with plans...