Quinn v. Complete Electric Const. Co.

• Decision Date: 23 May 1891
• Citation: 46 F. 506
• Parties: QUINN v. COMPLETE ELECTRIC CONST. CO.
• Court: U.S. District Court — Southern District of New York

46 F. 506

QUINN v. COMPLETE ELECTRIC CONST. CO.

United States Circuit Court, S.D. New York.

May 23, 1891

George A. Black, for complainant.

H Applington, for defendant.

WALLACE J.

The plaintiff was run over by a horse and truck driven by one Murphy by the negligence of Murphy, who at the time was performing a service for the Western Electric Company, but was in the employ of the defendant, and was driving its horse and truck. The question in the case is whether Murphy was the servant of the defendant or of the Western Electric Company. If he was not the servant of the defendant, the instructions given to the jury on the trial were incorrect, and the verdict for the plaintiff cannot stand. The pertinent facts are these: Pursuant to a contract by which the defendant was to furnish the Western Electric Company with a horse, truck, and driver daily to do its trucking work for a specified period at a specified price, the defendant each day selected from its men and equipment the horse, truck, and driver which were to be at the disposition of the Western Electric Company, and on the day the plaintiff was injured had sent Murphy with the horse and truck, which he was driving at the time. Murphy had taken a load of goods for the Western Electric Company, and was returning to its factory, when he ran over the plaintiff. Under these circumstances, although the Western Electric Company was the primary employer for whom the service which Murphy was engaged in was being rendered, the defendant was Murphy's immediate superior. It had hired him, and could discharge or retain him, and thus had the selection and control of the means of accomplishing the object of the contract which had been made between the Western Electric Company and itself. The defendant was not the servant or agent of the Western Electric Company, but was an independent contractor; hence those employed by the defendant to do the work contracted for were its servants, and not those of the Western Electric Company. Reedie v. Railroad Co., 4 Exch. 244; Blake v. Ferris, 5 N.Y. 48; Hilliard v. Richardson, 3 Gray, 349; Allen v Willard, 57 Pa.St. 374; Scammon v. Chicago, 25 Ill. 424.

The rule of respondeat superior rests on the power which the superior has a right to exercise, and which, for the protection of third persons, he is bound to exercise, over the acts of his subordinates. It does not apply to cases where the power of control does not exist, and the power does not exist when the primary employer has no voice in the selection or retention of the subordinate. The following citations illustrate the application of the rule: Laugher v. Pointer, 5 Barn. & C. 560, was an action to recover damages done to plaintiff's horse. The defendant owned a carriage, and hired a stable-keeper a pair of horses and a driver to draw it for a day or a short time. The injury was done through the carelessness of the driver, while the owner of the carriage was riding in it. The plaintiff was nonsuited, on the ground that the driver was the servant of the stable-keeper, and not of the owner of the carriage. In Quarman v. Burnett, ...