Delory v. Blodgett

• Decision Date: 26 February 1904
• Citation: 185 Mass. 126,69 N.E. 1078
• Parties: DELORY v. BLODGETT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

185 Mass. 126

69 N.E. 1078

DELORY v. BLODGETT et al.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1904

COUNSEL

Walter

A. Buie and William J. Miller, for plaintiff.

Carver & Blodgett, for defendants.

OPINION

KNOWLTON, C.J.

The plaintiff, while repairing machinery in the defendants' shop, was injured through the negligence of one Whippen, the defendants' engineer, in starting the machinery. The plaintiff rests his claim for damages on two propositions: First, that he was not a servant of the defendants, and therefore that Whippen was not his fellow servant; and, secondly, that, if Whippen was his fellow servant, the defendants were negligent in employing him because he was an unfit person to be intrusted with the management of an engine.

The plaintiff's relations to the defendants appear from his testimony, as follows: He said he was a millwright and carpenter in the general employment of the American Tool & Machine Company as a jobber; that jobbers were sent to do any kind of work, and were supposed to go wherever they were sent, and work until the work was done; that he and another man were directed by telephone to go to the defendants' place; that he had been there two or three times before 'that what he was sent to do, first, was to tighten up the pulley;' that afterwards, while he was in the engine room washing his hands, the defendants' superintendent Alden, came down and said to him, 'Hurry upstairs; there is something wrong with the belt;' that he went upstairs with the superintendent, and started to work and adjusted the tightener; that when he got through that the superintendent said to him, 'Come over and see if the wire is leading in the center of the shieve;' that when he first came upstairs it was at the request of Mr. Alden, the superintendent; that when he went up to go to work on the tightener Mr. Alden went with him; that after he got through with the tightener he asked Mr. Alden if there was anything else to do, and that Mr. Alden called his attention to the rope that ran over the shieve. The plaintiff's undisputed evidence shows that he was an expert workman lent to the defendants by his general employer to make repairs upon their machinery. It appears that the American Tool & Machinery Company were accustomed to render bills to the defendants for labor and materials furnished, the labor being charged and paid for at a price per hour.

The law in regard to persons working in this way has often been considered by this court. In Hasty v. Sears, 157 Mass. 123, 31 N.E. 759, 34 Am. St. Rep. 267, Mr. Justice Barker quoted, as a true statement of the principle, this language from Cockburn, C.J., in Rourke v. White Moss Colliery Company, 2 C. P. D. 205-209: 'But when one person lends his servant to another for a particular employment, the servant, for anything done in that particular employment must be dealt with as the servant of the man to whom he is lent, although he remains the general servant of the person who lent him.' In Coughlan v. Cambridge, 166 Mass. 268-277, 44 N.E. 218, 219, Mr. Justice Morton says: 'The test is whether, in the particular service which he is engaged to perform, he continues liable to the direction and control of his master, or becomes subject to that of the party to whom he is lent or hired.' In Ward v. New England Fibre Company, 154 Mass. 419, 28 N.E. 299, it was held that on the question whether work was done by the general master of the servant under a contract which gave him the right to control the business as it was going on, and to complete it without any right of interference or control by the person for whom it was being done, the fact that the payment was to be made at the usual prices for labor and materials, instead of by giving a round sum, was not conclusive. The mode of payment in such a case is usually very significant; but it is possible for a proprietor to contract for the performance of certain work on his property in a way which will give the contractor a legal right to furnish the whole work, and to...