Ennis v. Baumann Rubber Co.

• Decision Date: 21 February 1917
• Citation: 91 Conn. 425,99 A. 1031
• Court: Connecticut Supreme Court
• Parties: ENNIS v. BAUMANN RUBBER CO.

99 A. 1031

91 Conn. 425

ENNIS

v. BAUMANN RUBBER CO.

Supreme Court of Errors of Connecticut.

Feb. 21, 1917.

Appeal from Superior Court, New Haven County; Milton A. Shumway, Judge.

Action by Richard Ennis against the Baumann Rubber Company. Judgment for plaintiff on verdict of a jury, and defendant appeals. Judgment set aside, and new trial ordered.

The complaint alleges, and both parties agree, that the plaintiff, not in the defendant's regular employment, verbally agreed with the defendant to sink a well upon the latter's premises for an agreed price per foot, and that while he was engaged in performing the work according to the agreement he was injured by the breaking and fall of a hoisting apparatus set up for his use, and which he was at the time using. The plaintiff alleged, and offered evidence to prove, that the agreement entered into contained an undertaking on the part of the defendant to furnish all the tools, apparatus, and materials which should be needed in the execution of the work, that the apparatus which broke and fell was so furnished by the defendant, that it was set in place for the plaintiff's use under the direction of the defendant's servants and agents, and that it was defective, as the defendant well knew, or ought to have known.

The defendant admitted that it agreed to supply all pipe, pipe couplings, and pipe points needed, but denied that it undertook to furnish the tools which the plaintiff might require for the performance of the work. Its testimony was to the effect that the plaintiff was to provide his own assistants and tools, and did so until the emergency arose which required the use of some more efficient apparatus than he possessed, and that he was not subject in any way to its control or direction in the prosecution of the work. The emergency referred to arose because of the failure of the plaintiff's first attempt to reach water, and the decision arrived at for that reason to withdraw the pipe already driven. The conflicting testimony concerning the ownership of the hoisting apparatus procured and used, the circumstances surrounding its procurement, installation, and use, and the incidents attending the accident, need not be recited.

Frank S. Bishop, of New Haven, for appellant. Charles S. Hamilton and Edward P. O'Meara, both of New Haven, for appellee.

PRENTICE, C. J. (after stating the facts as above). The court instructed the jury that the first question for its decision was one whether the relation existing between the plaintiff and defendant at the time that the former's injuries were sustained was that of master and servant, or that of independent contractor and contractee, and furnished them a test to be applied in reaching its answer. Having done this, it proceeded to state that, if it should be found that the plaintiff occupied the position of an independent contractor, a verdict against him must be returned, since the law would not permit him to recover. This aspect of the case having been disposed of, the court turned to a consideration of the rights,...