Crocker v. MacLean

• Decision Date: 24 May 1938
• Parties: CHARLES S. CROCKER v. ALEXANDER MACLEAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

300 Mass. 255

15 N.E.2d 237

CHARLES S. CROCKER v. ALEXANDER MACLEAN.

Supreme Judicial Court of Massachusetts, Middlesex.

May 24, 1938

March 7, 8, 1938.

Present: RUGG, C.

J., FIELD, LUMMUS DOLAN, & COX, JJ.

Agency, What constitutes, Independent contractor. Negligence, Independent contractor.

Evidence that the owner of a building being altered, negotiating with two painters as independent contractors and being told by them that it was impossible to make a contract price, engaged them to paint the building at a price per day for each, they furnishing gear, and he furnishing materials and indicating the work to be done but not directing or controlling them in the details of the work, did not warrant a finding that they were employees nor subject him to liability for injuries caused to one of them through negligence of the other.

TORT. Writ in the Superior Court dated May 11, 1936. A verdict for the plaintiff in the sum of $7,500 was recorded subject to leave reserved by Goldberg, J., who afterwards ordered the entry of a verdict for the defendant. The plaintiff alleged exceptions.

E. H. R.

Burroughs, for the plaintiff.

F. R. Walsh, (J.

P. Fagan with him,) for the defendant.

LUMMUS, J. The defendant, who was not insured under the workmen's compensation act, owned on April 10, 1936, a skating rink in Revere, then under alterations, and wished to have it painted. The plaintiff had been a journeyman painter for thirty years, and never had had a shop or a business of his own. He had been out of work for a year. He and one Hazleton "who had done a little of everything, some painting off and on," went out in the latter's automobile on that day, looking for work. They noticed that alterations were being made in the skating rink, and asked the defendant whether he had engaged a painter. The defendant told the plaintiff and Hazleton that he had not, and that they might give him a figure on the job. Discovering that the defendant did not know just what alterations would be made, the plaintiff told him that it was impossible to make a contract price, but that they (the plaintiff and Hazleton) would take the job for $4 a day each, for eight hours work, and "let you [the defendant] have my [the plaintiff's] gear." The material was to be furnished by the defendant. The defendant assented, and a few days later they began work. The defendant told them what colors he wanted and where on the building they were to begin. Carpenters were still at work, and they followed the carpenters, painting where they could, without specific instructions. The first time they were paid, they were told by the defendant that "we keep a day back on every man who works on this building, you will get it later."

The staging used belonged to the plaintiff, and was part of the "gear" that he furnished. Shifting its position required one man on the roof and the other on the ground. It was suspended from two curved hooks about two feet long, the point of each of which was placed in a hole in a wooden cleat which had to be fastened by nails to the roof in the new position desired. Hazleton undertook to fasten the cleats to the roof, but negligently failed to do so securely. The result was, that when the plaintiff was on the staging, about twelve feet above the ground, it fell, and the plaintiff was hurt.

The jury returned a verdict...