Bain v. Petroleum Iron Works Co.

• Decision Date: 04 January 1909
• Docket Number: 84
• Citation: 223 Pa. 96,72 A. 279
• Parties: Bain v. Petroleum Iron Works Company, Appellant
• Court: Pennsylvania Supreme Court

72 A. 279

223 Pa. 96

Bain v. Petroleum Iron Works Company, Appellant

No. 84

Supreme Court of Pennsylvania

January 4, 1909

Argued October 20, 1908

Appeal, No. 84, Oct. T., 1908, by defendant, from judgment of C.P. Allegheny Co., Nov. T., 1905, No. 410, on verdict for plaintiff in case of Thomas Bain v. Petroleum Iron Works Company. Reversed.

Trespass to recover damages for personal injuries. Before KENNEDY P.J.

Verdict and judgment for plaintiff for $2,500. Defendant appealed.

Error assigned was (3) portions of opinion, quoted in the opinion of the Supreme Court.

The judgment is reversed, and venire facias de novo awarded.

John C Bane, with him B. G. Hughes and H. B. Hughes, for appellant. Ohio Railroad -- Robinson was an independent contractor: Painter v. The Mayor, etc., of Pittsburg, 46 Pa. 213; Hunt v. Penna. R.R. Co., 51 Pa. 475; Allen v. Willard, 57 Pa. 374; Chartiers Valley Gas Co. v. Lynch, 118 Pa. 362; Miller v. Merritt, 211 Pa. 127; Erie v. Caulkins, 85 Pa. 247; Eby v. Lebanon County, 166 Pa. 632; Thomas v. Altoona, etc., Electric Ry. Co., 191 Pa. 361; Harrison v. Collins, 86 Pa. 153; Wray v. Evans, 80 Pa. 102; Edmundson v. R.R. Co., 111 Pa. 316; Rourke v. White Moss Colliery Co., L.R. 1 C.P. Div. 556.

H. Fred Mercer, for appellee. -- It has been repeatedly held by this court that where the master, or the principal, reserves the right to control the work in any manner, that the relation of master and servant exists between himself and agent: Rose v. Philadelphia, 31 Legal Int. 165; Trainor v. R.R. Co., 137 Pa. 148.

Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.

OPINION

MR. JUSTICE STEWART:

The plaintiff was injured while helping to put in place several iron water tanks constructed by the defendant company at its work in Washington county for Pfarr's Select Hand Laundry, Pittsburg. The evidence in the case called for a submission to the jury of two questions of fact: first, was the plaintiff injured in consequence of negligence on the part of his employer? and, second, was the defendant the employer? The first of these questions was submitted in a charge entirely satisfactory to both sides and the determination of that particular issue does not concern us here. The second question was not submitted at all. The only reference to it in the charge is as follows: "There was some claim made by the defendant that Robinson (the man who, according to plaintiff's witnesses, was in charge of the work) did not represent the defendant in connection with that work. There was an offer made of an independent contract on the part of this man Robinson, but that has been ruled as not being an independent contract. The testimony of the plaintiff and his witnesses would tend to show that Robinson was acting for the plaintiff here; they say that he hired and discharged the men, and that Regan acted as assistant foreman under him, and Robinson was held out as foreman and Regan as assistant foreman. At any rate Robinson seemed to be the only person who was on the premises who did seem to represent the defendant, and the further testimony of the plaintiff is that he was in the employ of the company, and that they paid him for his work. It is said that Mr. Robinson was held out as their foreman." The defendant denies that Robinson represented them in the erection of the tanks, and insists that he was an independent contractor for that work, under a written article of agreement between the company and Robinson, wherein the latter undertook for a consideration of $350 "to furnish all labor, hauling, lumber, nails, erection equipment and supplies of whatsoever kind, and in a skillful and workmanlike manner erect, calk water tight under tests, paint and entirely complete, ready for use said water tanks and appurtenances in accordance with the specifications and drawings, and instructions or alterations that have been or may later be given by said manufacturer (defendant company) to said contractor (Robinson), subject to inspection, approval and acceptance or rejection by Pfarr's Hand Laundry and said manufacturer." By later clause in the contract, Robinson waived all right to file lien or liens for work or material furnished; and in addition to a consideration of $350, defendant agreed to furnish the tools and rigging for the work, the same to be returned to them after the work had been completed. The price of the work was not to be paid until it had been completed and accepted by the laundry company, and then only upon delivery of proper receipts for all wages and expenses incurred in carryout the agreement. It would have been more satisfactory had the learned trial judge indicated his reasons for holding that this was not an independent contract. We confess to a total inability to discover a single reason for the ruling. Judged simply by its own terms -- and these were all the court should consider in construing it -- the contract can be nothing less than an independent contract. It commits the entire work of erection to Robinson, beyond the power of the defendant company to interfere in the slightest regard, whether with respect to men or methods, and reserves nothing to the defendant, except only the right to alter the specifications which were made part of the contract between the defendant company and the laundry company. Such reservation does not make it any less independent as a contract: Miller v. Merritt, 211 Pa. 127. The cases in Pennsylvania...