Dutton v. Amesbury Nat. Bank

• Decision Date: 02 April 1902
• Citation: 181 Mass. 154,63 N.E. 405
• Parties: DUTTON v. AMESBURY NAT. BANK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

181 Mass. 154

63 N.E. 405

DUTTON v. AMESBURY NAT. BANK.

Supreme Judicial Court of Massachusetts, Essex.

April 2, 1902

COUNSEL

M. A. Pingree and John Ryan, for plaintiff.

Reddy & Reddy, for defendant.

OPINION

LATHROP J.

This is an action of tort for injuries sustained by the plaintiff in consequence of the negligence of persons alleged to be the servants of the defendant. In the superior court the case was sent to an auditor, who found certain facts, and further found for the plaintiff in the sum of $123.75. The case was then heard by a judge of the superior court upon the report of the auditor, whose findings were agreed to be true, and a finding was made for the plaintiff in the same amount. The case comes before us on the defendant's exceptions to the refusal of the judge to give two rulings requested. Before stating them, it will be necessary to set forth the facts found by the auditor, which are, in substance these: The plaintiff was the occupant of a store on the westerly side of Main street, in Amesbury, separated from the defendant's building by a passageway about six feet wide. The division line between the two estates ran through the center of the passageway. In March, 1890, the defendant found that water was coming into its cellar through the wall next to the passageway; and the cashier of the defendant went to the place of business of one Sawyer, to get him to repair the cellar wall and stop the water from running into the cellar. Sawyer was not in, but the cashier found one Grenier, who was in Sawyer's employ, and who had charge of the business in the absence of Sawyer, and requested him to go to the place and stop the water from running into the cellar. Grenier went to the building, employed help, and dug up the earth in the passageway in order to reach the leak in the defendant's wall. The earth dug up was thrown in a pile across the passageway from the plaintiff's store to the defendant's building. The pile remained there about a week, when there came a snowstorm, followed by rain. The water ran down the passageway until it was stopped by the pile of dirt, when it ran into a window of the plaintiff's store,--the sill being at about the level of the surface of the passageway,--and did the injury complained of. The plaintiff knew that the pile of earth was across the passageway for a week before the water ran into the store. As soon as the plaintiff found that the water was running into the store, he dug away the pile of earth, and stopped the water from coming in. The auditor found that the plaintiff was not guilty of negligence in not removing the pile of earth before the storm. In answer to the contention of the defendant that Sawyer was a contractor, the auditor reported as follows: 'I do not find that said Sawyer made any contract with the defendant to stop the water from running into its cellar, but I find that said Sawyer did the work under a general employment, and was to receive a reasonable compensation therefor.' In this connection, also, the following appears in the report: 'It did not appear that the defendant gave any directions about the work done by Grenier, but left the method of doing the work and stopping the leak to his judgment.' The requests asked for and refused were as follows: '(1) On the evidence as agreed, the relation of master and servant did not exist between Sawyer and the defendant, and the plaintiff cannot recover. (2) The plaintiff having seen the earth piled upon his own land at least a week before the injury complained of, it was his duty to remove it, or to so arrange it as to prevent its being the cause of further damage, and, not having done so, did not comply with the law, which requires every one to use reasonable care to protect his own property against what may cause injury to it, and to prevent unnecessary damage.'

The principal question in the case arises on the first request for instructions, and is whether the relation of master and servant existed between the defendant and Sawyer. To establish the liability of one person for the negligence of another, it is not enough to show that the person whose negligent action caused the injury was at the time in the employment of the person sought to be charged, but it must also be shown that the relation of master and servant existed between them. This distinction sometimes has been lost sight of. Until the case of Hilliard v. Richardson, 3 Gray, 349, 63 Am. Dec. 743, was decided, our decisions were in a somewhat anomalous state. Compare Sproul v. Hemmingway, 14 Pick. 1, 5, 25 Am. Dec. 350, with Stone v. Codman, 15 Pick. 297. In Hilliard v. Richardson it was held that where the owner of land employed a carpenter, for a specifice price, to repair a building thereon, and to furnish all the materials for the purpose, he was not liable for injury to a third person caused by the negligence of a teamster employed by the carpenter in depositing boards in the highway in front of the house. See, also, Linton v. Smith, 8 Gray, 147; Conners v. Hennessey, 112 Mass. 96; Boomer v. Wilbur, 176 Mass. 482, 57 N.E. 1004, 53 L. R. A. 172. It so happened, in Hilliard v. Richardson, that the price to be paid was a specific sum, and it is not surprising that at first this fact was seized upon as the turning point in determining whether the relation was that of master and servant, or of contractor and contractee. See Brackett v. Lubke, 4 Allen, 138, 81 Am. Dec. 694; Forsyth v. Hooper, 11 Allen, 419. Later the method of payment was held to be not the test, but whether the person employed 'was in the exercise of a distinct and independent employment, using his own means and methods for accomplishing his work, and not being under the immediate supervision and control of his employer.' Morgan v. Sears, 159 Mass. 570, 574, 35 N.E. 101. See, also, Dane v. Chemical Co., 164 Mass. 453, 456, 41 N.E. 678; Harding v. City of Boston, 163 Mass. 14, 39 N.E. 411; Hexamer v. Webb, 101 N.Y. 377, 385, 4 N.E. 755, 54 Am. Rep. 703; Corbin v. American Mills, 27 Conn. 274, 71 Am. Dec. 63; Murray v. Currie, L. R. 6 C. P. 24. In the case at bar the burden of proof was upon the plaintiff to show that the relation of master and servant existed between the defendant and Sawyer. This was not shown. The language of the auditor, when he says, 'I do not find that said Sawyer made any contract with the defendant to stop the water from running into its cellar,' would seem to mean 'no contract in writing.' But this is not important. There was clearly a verbal contract either to stop the water from running into the cellar, or to try to stop it,--and it is immaterial which,--for which Sawyer was to have a reasonable compensation. In carrying out this contract, the plaintiff was injured by the negligence of the servants of Sawyer, who were hired by his representative, Grenier. The defendant neither hired these servants, nor was under any obligation to pay them. It exercised no control over them, nor, so far as appears, had any right to exercise such control. The method and manner of doing the work were left entirely to the skill and judgment of Sawyer, who, on the facts found, does not appear not to have been an independent contractor, for the negligence of whose servants the defendant is not shown to have been responsible. The first instruction requested should therefore have been given, at least in substance.

The second instruction requested was properly refused. The auditor did not find that the plaintiff was guilty of negligence in not removing the pile of earth before the storm. We cannot say, as matter of law, that the plaintiff was not in the exercise of reasonable care.

Exceptions sustained.

DISSENTING

KNOWLTON J.

I do not agree to the opinion of the majority of the court. I cannot make plain the reasons for my dissent without stating propositions which seem to me elementary. If the cashier had directed the janitor of the bank to dig up the earth and stop the opening in the wall, I think no one would doubt that the janitor would have been the servant of the bank in doing the work. The same result would as certainly have followed if the cashier had found a laborer waiting for a job at the corner of a street, and had employed him to do the work under the same general direction. In each case, irrespective of the amount or mode of payment, the employé would be the servant...