Hoar v. Merritt

• Decision Date: 15 July 1886
• Citation: 62 Mich. 386,29 N.W. 15
• Court: Michigan Supreme Court
• Parties: HOAR v. MERRITT and Wife.

29 N.W. 15

62 Mich. 386

HOAR v. MERRITT and Wife.

Supreme Court of Michigan

July 15, 1886

Error to Marquette.

MORSE J., dissenting.

W.P. Healy, for plaintiff and appellant.

M.H. Maynard, for defendants.

CHAMPLIN J.

Defendants are husband and wife. Mrs. Merritt is the owner of lots Nos 12 and 13 in Hewitt's addition to the city of Marquette. Upon these lots, in 1880, Daniel H. Merritt erected a large stone house. He employed an architect who prepared the plans and directed and superintended the work. His position was that of foreman or overseer. He was employed by the month. The defendant Daniel H. Merritt furnished all the materials and he gave directions to the superintendent whenever occasion required. The superintendent hired all the men except the painters. When the building was ready for the construction of the cornice, the person employed as superintendent directed the carpenters to build a scaffold. Mr. Merritt furnished plenty material, and of good quality, to build a good, strong scaffold, but gave no directions to build it, or in what manner it should be constructed. The superintendent directed the kind of supports to be used, which were to be brackets projecting from the windows of the upper story, and the carpenters went on and constructed it according to his instructions. There was no defect in the plan, and the carpenters were competent workmen. They worked upon it, in putting up the cornice, for about three weeks. When it was completed and ready for the painters, Mr. Merritt employed a Mr. Zryd as a foreman to do the painting. He was to pay him by the day. Mr. Zryd was to employ other painters, whom Mr. Merritt was also to pay going wages, and Mr. Zryd was to furnish brushes, and receive 25 cents a day for each man employed to compensate him for brushes and overseeing. All other materials were to be furnished by Mr. Merritt. When the painters commenced to paint upon the cornice, they went upon and used the scaffold which had been erected by the carpenters. The plaintiff in this suit was a painter, and had been engaged by Mr. Zryd to assist in painting the cornice. In doing so he went with others upon the scaffold, which gave way, and precipitated him to the ground. He fell a distance of about 22 feet, and received severe and permanent injuries. This was on the eleventh of August, 1880. On July 8, 1885, he brought this action against defendants to recover damages for the injuries received by him, through the fault and negligence, as he claims, of defendants in not constructing and maintaining a sufficiently strong and safe scaffolding for him to work upon.

The circuit judge directed a verdict for the defendants, upon the ground that the testimony showed that defendants had selected a competent and careful overseer, and had furnished suitable materials for constructing the scaffold and that plaintiff was a fellow-laborer with Gregory, the overseer, and the carpenters who built the scaffold, and therefore the plaintiff could not recover. No question arises as to the relation which existed between Mr. Merritt and plaintiff. They were plainly those of master and servant. As master he was bound to furnish appliances or instrumentalities as safe and free from defects as ordinary care and prudence could provide; and this care must have been commensurate with the risks to his laborers incident to faulty or defective appliances, and he must have continued to see that they were in a proper and safe condition while in use by his servants. How did he discharge this duty? He furnished suitable materials for constructing the scaffold. He employed competent, suitable, and careful men to plan and build them. None of these laborers, including the plaintiff, were independent contractors. They were all employed in a common pursuit,--in carrying out a common enterprise,--and that was in building a house for Mr. Merritt; to accomplish which it was necessary that the wall should be constructed by the mason, the carpenter and joiner work should be done by the carpenters, the painting should be done by the painters; and in the execution of the common design it was necessary...