Dane v. Cochrane Chemical Co.

• Decision Date: 19 October 1895
• Citation: 164 Mass. 453,41 N.E. 678
• Parties: DANE v. COCHRANE CHEMICAL CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

164 Mass. 453

41 N.E. 678

DANE v. COCHRANE CHEMICAL CO.

Supreme Judicial Court of Massachusetts, Suffolk.

October 19, 1895

COUNSEL

Freedom Hutchinson, for plaintiff.

R.M Saltonstall and Robert F. Herrick, for defendant.

OPINION

FIELD C.J.

At the argument no objection was made that the notice given was not sufficient, or might not have been found by the jury to be sufficient; and it was not contended by the plaintiff that the ladders used could be found by the jury to be a part of the ways, works, and machinery of the defendant, within the meaning of St.1887, c. 270, § 1. The plaintiff relied upon the second count of the amended declaration, and the principal, although not the only, question argued is whether there was evidence for the jury that Frederick Johnson was a servant of the defendant, intrusted with and exercising superintendence, and whose sole or principal duty was that of superintendence over the performance of the carpentry work which the plaintiff, with others, was engaged in doing, or whether Johnson, in doing this work, was an independent contractor. Johnson was employed by the defendant under a continuing contract to do from time to time such carpentry work as was necessary to be done on the buildings occupied by the defendant for the purpose of manufacturing chemicals. The works of the defendant covered an area of about a dozen acres, and were divided into two departments, and over each department was a superintendent. Johnson received his orders for the carpentry work to be done usually from one of the superintendents. He hired the men to be employed in doing the work, superintended, paid, and discharged them. The defendant paid Johnson $2.50 a day for his work and 25 cents a day for each man employed by Johnson, in addition to the amount of the wages which Johnson agreed to pay the man. So far as appears, Johnson furnished the tools and the defendant the materials required to do the work. Johnson drew money from time to time from the defendant on account of what was due to him, and at the end of each month the accounts between him and the defendant were usually settled. Johnson paid his workmen every Saturday, but their names never appeared on the pay roll of the defendant. They never were paid by the defendant, and the defendant kept no account with them. Apparently Johnson kept workmen in his employ whom he used in performing work for other persons as well as for the defendant. We think that it was competent for the jury to infer from all the testimony that the defendant determined what repairs and alterations requiring carpentry work from time to time should be made, and when and how they should be made, although, when it decided upon what repairs and alterations were to be made, it usually left the manner of making them to the discretion of Johnson. When there are no specifications in advance of what is to be done, and no round price agreed upon, and a carpenter is employed to make repairs and alterations to the satisfaction of his employer, to be paid according to the amount of work done by the carpenter and the men he employs, it would seem to be a reasonable inference that the employer...