Armour & Company v. Young
| Decision Date | 10 February 1931 |
| Citation | 237 Ky. 444 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | Armour & Company v. Young. |
2. Master and Servant. — Master consenting to servant employing helpers assumes towards helpers same duties of care that he owes to own servants.
3. Master and Servant. — Employer agreeing to keep in repair boiler furnished employee was not relieved of liability to employeee's helper for injury by explosion of boiler on ground that employee was independent contractor.
4. Steam. — Employer agreeing to keep in repair boiler furnished employee was under duty to keep boiler in reasonably safe condition for use of persons rightfully about boiler.
5. Master and Servant. — Complaint for employee's injury, alleging defect in machinery and negligent operation, was sufficient to present issue of defective condition from negligence in original installation or from careless operation and maintenance.
Appeal from Washington Circuit Court.
GEORGE R. HERR, MARSHALL DUNCAN and W.F. GRIGSBY for appellant.
POLIN & POLIN for appellee.
Affirming.
Armour & Co., by a written contract, employed J. W. Russell to conduct its cream station in Springfield, Ky. Russell in turn employed Josie May Young to assist him with the work, and in his absence to carry it on for him. Armour & Co., furnished certain equipment necessary for the use of the station, consisting of a small boiler connected with a heater for the generation of steam for cleaning milk cans, and of certain apparatus for testing cream.
The boiler exploded, and the assistant was severely scalded. She instituted an action against Armour & Co. to recover damages for the injuries, and a judgment was rendered in her favor. Armour & Co. has prosecuted an appeal, insisting that it was entitled to a peremptory instruction, and that the court erred in giving and refusing instructions.
The argument for the peremptory instruction is predicated upon the assertion that Russell was an independent contractor, and upon the assumption that the negligence, if any, that caused the injury to plaintiff, was chargeable to him.
Russell's contract was in writing and authorized him to purchase, handle, care for, and deliver cream according to instructions then or thereafter given. The contract was terminable by either party upon thirty days' notice. The company agreed to keep the equipment in good repair, and to pay Russell a fixed price per pound of butter fat contained in the cream purchased at the station. Russell paid all the other expenses, including rent, fuel, water, lights, and the salary of his assistant. He was allowed to carry on other business at the station, and his helper assisted with that in the same manner she served in buying and handling cream for the appellant.
The district manager of appellant visited the station once or oftener each week, and instructed the assistant to keep the station and the cream cans clean, and inspected her work to see that it confermed to instructions. Her employment was contracted and her work was performed with the knowledge and acquiescence of the appellant.
It is urged that Russell was an independent contractor because his compensation was measured by the quantity of cream purchased, out of the proceeds of which he was compelled to bear the entire expense of the station, and because he was authorized and allowed to employ and discharge his own help and to run the business in his own way. The method of payment is not decisive, and there are other facts to be considered. The company supplied the machinery and equipment, and undertook to maintain it in good order. The nature of the work was unlike that involved where a certain finished product was to result when given plans were executed, but it contemplated a continuous course of conduct in buying and handling a portable material.
If the injury had been caused by some wrongful act of Russell wholly disconnected from the appliances furnished by the appellant, or by a careless use made of them, the question would be presented in a different aspect. Cf. Borderland Coal Co. v. Burchett, 193 Ky. 602, 237 S.W. 663; Ballard & Ballard Co. v. Lee, 131 Ky. 412, 115 S.W. 732; Hewitt Lumber Co. v. Mills, 193 Ky. 443, 236 S.W. 949; Adams Express Co. v. Schofield, 111 Ky. 832, 64 S.W. 903, 23 Ky. Law Rep. 1120; Williams v. National Cash Register Co., 157 Ky. 836, 164 S.W. 112; Madisonville, H. & E.R. Co. v. Owens, 147 Ky. 1, 143 S.W. 421. But here the injury was caused by the explosion of a steam boiler furnished by the appellant, and the negligence alleged concerned its condition, construction, maintenance, and operation. In such cases, a different rule applies, since the master owes the same duty and degree of care to employees of the contractor rightfully on its premises that he owes to his own servants. 14 R.C.L. sec. 19, p. 81; Chesapeake & O. Ry. Co. v. McCoy (Ky.) 112 S.W. 1105; Standard Oil Co. v. Titus, 187 Ky. 560, 219 S.W. 1077; Lexington & E.R. Co. v. White, 182 Ky. 267, 206 S.W. 467; West Kentucky Coal Co. v. Davis, 138 Ky. 667, 128 S.W. 1074; Yellow Creek Coal Co. v. Lawson, 229 Ky. 245, 16 S.W. (2d) 1043. In a case like this one, however, the rules regulating the liability of a master for the negligent acts of independent contractors are not apposite. The present case is governed by the rule respecting liability to helpers or assistants to servants for injuries inflicted upon them in the course of their employment. Under that rule the conventional relationship of master and servant results when the master consents for the servant to utilize the services of such helpers. The master thus assumes towards the assistants the same duties and degree of care that he owes to servants employed by himself. Thompson on Negligence, sec. 592; Paducah Box & Basket Co. v. Parker, 143 Ky. 609, 136 S.W. 1012, 43 L.R.A. (N.S.) 182; Borderland Coal Co. v. Small, 160 Ky. 738, 170...
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