Devlin v. Newfell

• Citation: 175 N.E. 647,275 Mass. 279
• Parties: DEVLIN v. NEWFELL et ux.
• Decision Date: 06 April 1931
• Court: United States State Supreme Judicial Court of Massachusetts

275 Mass. 279

175 N.E. 647

DEVLIN

v.NEWFELL et ux.

Supreme Judicial Court of Massachusetts, Middlesex.

April 6, 1931.

Report from Second District Court of Eastern Middlesex; Michael J. Connolly, Judge.

Action by Patrick Devlin against Philip Newfell and wife. From an order of the Appellate Division which reversed a finding for plaintiff by a judge of a district court, and which directed entry of judgment for the defendants, plaintiff appeals.

Order of Appellate Division reversed, and judgment entered for plaintiff.

Thomas F. Duffy, of Waltham, for plaintiff.

C. W. Galvin, of Waltham, for defendants.

WAIT, J.

This is an appeal from an order of an appellate division which reversed a finding for the plaintiff by a judge of a district court and directed entry of judgment for the defendants. The plaintiff declared in two counts, one under the Employers' Liability Act. G. L. c. 153, § 1, the other at common law, for an injury caused by the caving in upon him of a trench which he was digging to furnish sewer and water connection for a house then being constructed on the defendants' premises. The accident happened on June 22, 1928. The judge found that on June 4, 1928, the defendant Philip Newfell, on behalf of himself and the other defendant, his wife, Grace Newfell, the owners of the house, entered into a written contract with a brother-in-law, Williams, by which Williams agreed ‘to construct and perfect an excavation for sewer pipe and * * * a grade around the Neufell [sic] property * * *’ and to ‘complete in a workmanlike manner all of aforesaid work on or before July 25th, 1928. Meaning and intending thereby to present, the premises to aforesaid said Philip Newfell cleared of all refuse and in a presentable fashion on or before the aforesaid date. * * *’ He further found that ‘despite the contract * * * Philip Neufell [sic] acting for himself and his wife retained the right to control and manage the digging of said trench and that he at times supervised the work on the trench’; that he hired the plaintiff on June 18, 1928, and, at that time with the plaintiff and Williams measured the trench to be dug; that he hired and paid one Egan who did work on the trench, paying Egan twice while Williams paid him once; that at times he gave attention to the digging; that ‘sometimes' during the progress of the work Williams was away on vacation; that the plaintiff while exercising due care was injured ‘due to negligence in the said trench.’ The report does not set out any orders or instructions with regard to the method of doing the work which were given by the defendants to the plaintiff. Nor does it set out facts which show directly in what the negligence of the defendants consisted. It discloses that the trench was dug through filled land. There was contradictory evidence which admitted of a finding that the sides were not shored or otherwise guarded against falling in.

The report states that ‘the issue between the parties is whether the defendants had the control and management of the digging of the trench in question or retained the right and did supervise the digging of the trench.’ By the terms of the contract Williams was an independant contractor. He undertook to dig, complete and deliver a sewer tranch. No words of the contract retain to the Newfells any right to direct or control the method of doing the work, or the actions of the men engaged upon it. While it was in force, Williams was not a servant of the Newfells. No doctrine of respondeat superior could make them responsible for his tortious acts. Dutton v. Amesbury National Bank, 181 Mass. 154, 63 N. E. 405. And no relationship of master and servant would exist between the Newfells and men employed in the work called for by the contract. See Linnehan v. Rollins, 137 Mass. 123, 50 Am. Rep. 287. Acts which otherwise might support an inference of such regulation, such as payment, inspection,...