Atlantic Transport Co. v. Coneys

• Decision Date: 26 July 1897
• Citation: 82 F. 177
• Parties: ATLANTIC TRANSPORT CO. v. CONEYS.
• Court: U.S. Court of Appeals — Second Circuit

82 F. 177

ATLANTIC TRANSPORT CO. v. CONEYS.

United States Court of Appeals, Second Circuit.

July 26, 1897

A firm of jobbing carpenters employed by a steamship company to make necessary repairs and alterations in their vessels when in port, and who charged for work by the hour, and lumber by the foot, sent men in charge of a foreman to do the work. Superintendents and captains of the vessels had the right to direct the manner and extent of repairs and alterations to be made. Held, that the men, while so engaged, were the servants of the steamship company, and not of an independent contractor.

This writ of error was brought to reverse a judgment for $2,034.85, rendered upon a verdict of the jury in favor of Michael Coneys, the plaintiff below, in an action to recover damages for personal injuries caused by the negligence of persons alleged to be the servants of the defendant, a steamship company having a line of steamers running to and from New York, and engaged in the transportation from New York to London of cattle, horses, grain, and general merchandise. The plaintiff was an employe of an elevator company, and at the time of the accident was at work upon a canal boat alongside of the defendant's steamer Mississippi, and between it and a grain elevator from which the steamer was loading. He was injured by the fall upon him of a wooden shutter which was used for closing a gangway at the side of the top deck of the steamer, and was a part of the fittings of the vessel for the carriage of cattle, and which was being handled by carpenters in the employment of H P. Kirkham & Son, a firm of carpenters, who were repairing the cattle stalls. The accident happened through the negligence of the carpenters. The defendant relied upon the position that the workmen were in the employment of independent contractors, and were not its servants, and, in various forms, requested the trial court to thus instruct the jury. The court charged the jury that the evidence showed they were not the servants of an independent contractor, but that they were doing the ship's work at the request of, and under the direction of, the ship's officers. To this charge the defendant excepted, and the assignments of error relate to this exception, and to the various refusals of the trial judge to direct otherwise. The facts in regard to the course of business of the defendant with the firm of H. P. Kirkham &amp Son are given in the opinion.

William P. Burr and H. K. Coddington, for plaintiff in error.

J Parker Kirlin, for defendant in error.

Before PECKHAM, Circuit Justice, and WALLACE and SHIPMAN, Circuit Judges.

SHIPMAN Circuit Judge (after stating the facts as above).

The fact of a distinction between the liability of an employer for an injury caused by the negligence of his employe or his servant, and the liability of an owner for an injury caused by the negligence of an independent contractor who undertakes to execute specified work upon the owner's property, was formerly not well recognized (Bush v. Steinman, 1 Bos.& P. 404), but is now distinctly understood (Hilliard v. Richardson, 3 Gray, 349). If any confusion now exists, it is in regard to the controlling tests that determine the character of the particular contract which is under examination. The two kinds of employment are frequently close to each other, and, while it is often not difficult to appreciate and understand the difference between the two classes of contracts, it is sometimes difficult to express the distinctions with exactness of language. The cases of Casement v. Brown, 148 U.S. 615, 13 Sup.Ct. 672, and Railroad Co. v. Hanning, 15 Wall. 649, illustrate that, while two contracts may apparently be similar in phraseology, yet their nature and subject-matter may place the respective contracting parties in different relations to each other. The tendency of modern decisions is not to regard as essential or controlling the mere incidentals of the contract, such as the mode and manner of payment (Corbin v. American Mills. 27 Conn. 274), or whether the owner can discharge the subordinate workmen, and not to regard as essential, or an absolute test, so much what the owner actually did when the work was being done, as what he had a right to do. Many circumstances may combine, as in Butler v. Townsend, 126 N.Y. 105, 26 N.E. 1017, which show that the relation of an independent contractor exists, but the significant test, which courts regard as of an absolute character, has been variously expressed by them as follows:

'The test, I think, always is, had the superior control or power over the acting or mode of acting of the subordinates? * * * Was there a control or direction of the person, in opposition to a mere right to object to the quality or the description of the work done? * * * On the other hand, if an employer has no such personal control, but has merely the right to reject work that is ill done, or to stop work that is not being rightly done, but has no power over the person or time of the workman or artisan employed, then he will not be their superior, in the sense of the maxim, and not answerable for their fault or negligence. ' Lord Gifford in Stephen v. Commissioners, 3 Sess.Cas.(4th Series Scot.) 535, 542.

In Linnehan v. Rollins, 137 Mass. 123, 125, the instruction of the trial judge, which was adopted by the appellate court, was:

'The absolute test is not the exercise of the power of control, but the right to exercise power of control.' In Hexamer v. Webb

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