McCarthy v. Second Parish in Town of Portland

• Decision Date: 04 August 1880
• Citation: 71 Me. 318
• Parties: CHARLES J. MCCARTHY, by his next friend, v. SECOND PARISH IN THE TOWN OF PORTLAND.
• Court: Maine Supreme Court

71 Me. 318

CHARLES J. MCCARTHY, by his next friend, v. SECOND PARISH IN THE TOWN OF PORTLAND.

Supreme Judicial Court of Maine.

August 4, 1880

ON MOTION AND EXCEPTIONS from the superior court, Cumberland county.

The verdict was for $3000.

The facts appear in the opinion.

Nathan & Henry B. Cleaves, for the plaintiff.

The law of the case is now well settled.

" The question in these cases, whether the relation be that of master and servant, or not, is determined mainly by ascertaining from the contract of employment whether the employer retains the power of directing and controlling the work or has given it to the contractor." Forsyth v Hooper et als. 11 Allen 422; Hilliard v Richardson, 3 Gray 349; Linton v. Smith, 8 Gray 147.

The true principle governing these cases is very clearly defined in Sherman on Negligence, § 77, page 86.

The power to control the work, and the manner of its execution is the guiding principle in cases of this kind. Peck v. Mayor et als. 8 N.Y. 222; Kelley v. same, 11 N.Y. 432; reversing S. C. 4 E. D. Smith, 291.

The case of Brackett v. Lubke el al. 4 Allen 139, is so directly in point, that the court will pardon us for referring to it with unusual particularity.

A carpenter was employed by the lessee of a building on Washington street, Boston, to repair an awning. He was told, as in the case at bar, what was wanted, without further directions, and neither the owner or lessee was present at the time the work was done. The carpenter received thirty-eight cents for the work. While the repairing was going on, a portion of the awning fell upon the head of a passer by. Suit for damages was brought against the lessee and a verdict rendered for plaintiff, and the defendants alleged exceptions.

The court says, BIGELOW, C. J.:

" This seems to us to be a very clear case. The defendants are liable, because it appears that the negligent act which caused the injury was done by a person who sustained towards them the relation of servant. There was no contract to do a certain specified job or piece of work in a particular way for a stipulated sum. It is the ordinary case where a person was employed to perform a service for a reasonable compensation. The defendants retained the power of controlling the work. They might have directed the time and manner of doing it. If it was unsafe to make the repairs at an hour when the street was frequented by passers, it was competent for the defendants to require the person employed to desist from work until this danger ceased or was diminished… The defendants were bound to see that in removing or altering a portion of the awning over the street no injury should be occasioned to travelers."

If a servant employs another to assist in his master's business, and the person so employed is guilty of negligence therein, the master is liable. Suidam v. Moore, 8 Barb. 358; Althorf, Adm'r, v. Wolfe, 22 N.Y. 355.

" The fact that there is an intermediate party, in whose general employment the person whose acts are in question, is engaged, does not prevent the principal from being held liable for the negligent conduct of the under-servant, unless the relation of such intermediate party to the subject matter of the business in which the under-servant is engaged, be such as to give him exclusive control of the means and manner of its accomplishment, and exclusive direction of the persons employed therefor." Kimball v. Cushman, 103 Mass. 198.

W. W. Thomas, Jr. and George E. Bird, for the defendants, cited: Peachey v. Rowland, 13 C. B. (76 E. C. L.) 182; Roberts v. Plaisted, 63 Me. 335; Sadler v. Henlock, 4 El. & Bl. 578; Wood on Master and Servant, p. 620; Corbin v. American Mills, 27 Conn. 274; Reedie & Hobbit v. London & N. W. R. R. Co. 4 Websly, H. & G. 256; Eaton v. E. & N. A. R. R. Co. 59 Me. 531; Quarman v. Burnett, 6 M. & W. 497 (1840); Laugher v. Pointer, 5 B. & C. 554; Blake v. Ferris, 5 N.Y. 48; Milligan v. Wedge, 12 Ad. & El. 177 (1840); Allen v. Hayward, 7 Ad. & El. N. S. 960; Butler v. Hunter, 7 H. & N. 826; Steel v. S. E. R. R. 81 E. C. L. 550; Murray v. Currie, 6 C. P. (Law Rep.) 24; Gaylord v. Nichols, 9 Exch. 702; Blake v. Ferris, 1 Seld. 48; Park v. Mayor, & c. New York, 8 N.Y. 226, 227; McMullin v. Hoyt, 2 Daly 271; DeForrest v. Wright, 2 Mich. 370; Kellogg v. Payne, 21 Iowa 575; Clark v. V. &. C. R. R. 28 Vt. 103; Schwartz v. Gilmore, 45 Ill. 455; Painter v. Pittsburg, 46 Pa.St. 213; Ardesco Oil Co. v. Gilson, 63 Ib. 146; 82 Pa. St; Boniface v. Relyea, 5 Abb. (N. S.) 259; Du Pratt v. Lick, 38 Cal. 691, cited in Wh. on Neg. § 181, note 4; Sh. and Red. on Negligence, § § 76, 79; Corbin v. American Mills, 27 Conn. 274; Burke v. N. & W. R. R. Co. 34 Ibid. 474.

The following, apparently in conflict with the authorities cited, have been overruled, or apply to facts altogether different from the case at bar, or are by courts holding to a different rule than that adopted by this court. Cush v. Steinman, 1 B. & P. 400; Randleson v. Murray, 8 Ad. & El. 109; Rapson v. Cubitt, 9 M. & W. 710; Hilliard v. Richardson, 3 Gray 362; Conners v. Hennessey, 112 Mass. 98; Clapp v. Kemp, 122 Mass. 481; Earle v. Hall, 2 Met. 358; Burgess v. Gray, 1 C. B. 578; Sadler v. Henlock, 4 El. &. Bl. 570; Pickard v. Smith, 10 C. B. 470; McCleary v. Kent, 3 Duer 27; Smith v. Milne, 2 Dow 290.

WALTON, J.

Some men at work upon the roof of the Second Parish church in Portland, carelessly allowed a ladder in use by them to be blown down by the wind, and it fell upon the plaintiff and injured him. The question is whether the parish is responsible for the injury. We think not. True, the law makes a master responsible for the negligence of his servant, but the employment of one who carries on an independent business, and in doing his work does not act under the direction and control of his employer but determines for himself in what manner it shall be carried on, does not create the relation of master and servant, and this responsibility does not attach.

The general rule, says Judge Thomas, in Linton v. Smith, 8 Gray 147, is that, he who does the injury must respond; that the well known exception is that, the master shall be responsible for the doings of the servant whom he selects, and through whom, in legal contemplation, he acts; but when the person employed is in the exercise of a distinct and independent employment, and not under the immediate supervision and control of the employer, the relation of master and servant does not exist, and the liability of a master for his servant does not attach.

In DeForrest v. Wright, 2 Mich. 368, the court say that where an employee is exercising a distinct and independent employment, and is not under the immediate control, direction, or supervision of the employer, the latter is not responsible for his employee's negligence. In that case a drayman was employed to haul a quantity of salt from a warehouse, and deliver it at the store of the employer at so much per barrel, and while in the act of delivering the salt, one of the barrels, through the carelessness of the drayman, rolled against the plaintiff and injured him, as he was passing upon the sidewalk, and it was held that the employer was not liable for the injury. In another case in the same volume, Moore v. Sanborne, 2 Mich. 519, the court held that where one was employed to cut and haul all the logs on certain land of the employer, and deliver them at a place named, the employer to have nothing to do with the cutting or hauling, the relation of master and servant was not thereby created, and that the employer would not be liable for the carelessness of his employee in performing the labor.

" Although, in a general sense, every one who enters into a contract may be called a ‘ contractor,’ yet, that word, for want of a better one, has come to be used with special reference to a person who, in the pursuit of an independent business, undertakes to do specific jobs of work for other persons, without submitting himself to their control with respect to all the petty details of the work… .. The true test, as it seems to us, by which to determine whether one, who renders service to another, does so as a contractor or not, is to ascertain whether he renders the service in the course of an independent occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is to be accomplished." … " One who contracts to do a specific piece of work, furnishing his own assistants, and executing the work either entirely according to his own ideas, or in accordance with a plan previously given him by the person for whom the work is done, without being subject to the latter with respect to the details of the work, is clearly a contractor, and not a servant." S. & R. on Negligence, § § 76-77.

" The difficulty always is to say whose servant the person is that does the injury; when you decide that, the question is solved. … When the person who does the injury exercises an independent employment, the party employing him is clearly not liable." WILLIAMS, J., in Milligan v. Wedge, 12 Ad. & E. 177. In that case a butcher employed a drover to drive a beast home for him, and the drover employed a boy, and through the boy's negligent driving, the beast ran into the plaintiff's premises and damaged his property, and the court held that the boy was the servant of the drover, and not the servant of the butcher, and that the latter was not liable for the injury.

" I understand it to be a clear rule in ascertaining who is liable for the act of a wrong-doer, that you must look to the wrong-doer himself, or to the first person in the ascending line who is the employer and has control of the work; that you cannot go further back and make the employer of that...