Darmstaetter v. Moynahan

• Citation: 27 Mich. 188
• Court: Supreme Court of Michigan
• Decision Date: 29 April 1873
• Parties: William Darmstaetter v. John D. Moynahan

27 Mich. 188

William Darmstaetter v. John D. Moynahan

Supreme Court of Michigan

April 29, 1873

Heard April 23, 1873

Error to Wayne Circuit.

Judgment affirmed.

Ward & Palmer, for plaintiff inerror.

Alfred Russell, for defendant in error.

OPINION

Graves J.

The plaintiff in error owned and occupied certain premises in Detroit upon which was an ice-house. Desiring to fill this house with ice, he obtained a license from the city to incumber the public street passing the premises, for the accomplishment of that object. He then hired one Kehl to fill the house, and agreed to pay him therefor two dollars and fifty cents per cord. Kehl in doing this work, left a pile of blocks and fragments of ice (covered with snow), of considerable size, and extending from the premises from six to nine feet out into the street. The defendant in error being out in the evening on a sleigh ride with his family, and passing along this street, and having no warning by light or signal of the existence of this obstruction, ran upon it, whereby his sleigh was upset, and himself and wife injured. He thereupon brought suit against the plaintiff in error and recovered, and the latter now claims that if any one is liable it is Kehl, who, it is urged, was a contractor with the plaintiff in error for putting up the ice, and acting in entire independence of the latter, and holding no such relation to him as to give an action against him for the negligence of Kehl. The jury expressly found that in the contract for putting in the ice nothing was said as to any right in plaintiff in error to control the manner of proceeding. It is admitted that if the relation between Kehl and plaintiff in error was not of that independent character claimed for it, the judgment cannot be disturbed. The case appears to be within the principle declared in Detroit v Corey, 9 Mich. 165.

In the opinion of the majority of the court it was said, that "when the relation of principal and agent, or master and servant, exists, the rule of respondent superior is applicable, but not when the relation is that of contractor only. In all ordinary transactions the relation of contractor excludes that of principal and agent, or master and servant. But there is not necessarily such a repugnance between them that they cannot exist together. The difference between them is, that a contractor acts in his own right and for himself whereas an agent or servant acts for and in...