Baker v. Texas Co.

• Decision Date: 29 February 1928
• Citation: 262 Mass. 425,160 N.E. 248
• Parties: BAKER v. TEXAS CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

262 Mass. 425

160 N.E. 248

BAKER

v.TEXAS CO.

Supreme Judicial Court of Massachusetts, Plymouth.

Feb. 29, 1928.

Exceptions from Superior Court, Plymouth County; C. H. Donahue, Judge.

Action by Henry A. Baker against the Texas Company. A verdict for defendant was directed, and plaintiff brings exceptions. Exceptions overruled.

E. M. Shanley, of Boston, and B. Tannenbaum, for plaintiff.

E. R. Dewing and H. E. Foley, both of Boston, for defendant.

CARROLL, J.

The plaintiff was injured by falling into a hole on the premises of one Ellis. There was evidence that Ellis had arranged with the Texas Company for the installation of a gasoline tank, and had agreed to dig a hole large enough for the tank and to put in a concrete foundation for the sum of $10. Ellis received an equipment lease of a pump and storage tank for the sale of the defendant's products.

We are unable to find anything in the evidence indicating that the defendant was responsible for the plaintiff's injuries. The defendant did not make the excavation. Ellis as an independent contractor did the work, using his own means and implements. He was in no sense the servant or agent of the defendant. The Texas Company had no right to direct the manner in which the work of excavation was to be done. The fact that the agent of the Texas Company reported to the fire marshal concerning the placing of the tank for the sale of gasoline, and the further fact that the advice of the defendant's agent was asked by Ellis as to whether the hole ‘was long enough and wide enough,’ are not sufficient to show that Ellis was the servant of the defendant. Morgan v. Smith, 159 Mass. 570, 35 N. E. 101;Harding v. Boston, 163 Mass. 14, 39 N. E. 411;Dutton v. Amesbury National Bank, 181 Mass. 154, 63 N. E. 405;Scribner's Case, 231 Mass. 132, 134, 120 N. E. 350, 3 A. L. R. 1178;Chisholm's Case, 238 Mass. 412, 420, 131 N. E. 161. The judge was right in directing a verdict for the defendant.

Exceptions overruled.