Morgan v. Sears

• Citation: 35 N.E. 101,159 Mass. 570
• Parties: MORGAN v. SMITH. SAME v. SEARS.
• Decision Date: 20 October 1893
• Court: United States State Supreme Judicial Court of Massachusetts

159 Mass. 570

35 N.E. 101

MORGAN

v.SMITH.

SAME

v.SEARS.

Supreme Judicial Court of Massachusetts, Suffolk.

Oct. 20, 1893.

Exceptions from superior court, Suffolk county; Daniel W. Bond, Judge.

Actions by William T. Morgan against James Smith and against Joshua M. Sears for personal injuries. The court directed a verdict for defendant in both cases, and plaintiff excepts. Exceptions sustained as to the first case, and overruled as to the second.

Joseph R. Smith and Prescott Keys, for plaintiff.

John Lowell and John Lowell, Jr., for defendants.

LATHROP, J.

There was evidence that the plaintiff, who was a workman in the employ of Flannagan, a carpenter, was, while in the exercise of due care on his part, injured by the negligent act of McCarthy, a mason in the employ of Smith, the defendant in the first case. Flannagan and Smith were engaged in repairing a building owned by Sears, the defendant in the second case. At the time of the accident, the plaintiff and McCarthy were working together, in putting in a ventilator on the roof. The justice who tried the case in the superior court ruled, at the close of the evidence, that there was no evidence which would warrant a finding for the plaintiff in either case, and directed a verdict for the defendants, and the case comes before us on the plaintiff's bill of exceptions to this ruling.

We infer from the argument of the defendant's counsel that this ruling proceeded upon the theory that the evidence showed conclusively that at the time of the accident the plaintiff and McCarthy were engaged on extra work, not covered by the contracts between Sears and Flannagan and Smith, and that they were the servants of Sears, and so fellow servants with each other. There is no doubt that the general servant of one person may become the servant of another by submitting himself to the control and direction of the other. In such a case, the servant becomes the fellow servant of the servants of the person under whose control he comes; and neither his general master nor his special master is liable, if he is injured by the negligence of one of the other servants. Murray v. Currie, L.R. 6 C.P. 24; Rourke v. Colliery Co., 1 C.P.Div. 556, affirmed in the court of appeal, 2 C.P.Div. 205; Donovan v. Construction Syndicate, [1893,] 1 Q.B. 629; Johnson v. Boston, 118 Mass. 114;Harkins v. Sugar Refinery, 122 Mass. 400;Killea v. Faxon, 125 Mass. 485; Hasty v. Sears, (Mass.) 31 N.E.Rep. 759. This question was carefully considered in Johnson v. Lindsay, [1891] App.Cas. 371, and Lord Watson stated what we consider to be the rule, and its limitations: “I can well conceive that the general servant of A. might, by working towards a common end along with the servants of B., and submitting himself to the control and orders of B., become, pro hac vice, B.'s servant, in such sense as not only to disable him from recovering from B. for injuries sustained through the fault of B.'s proper servants, but to exclude the liability of A. for injury occasioned by his fault to B.'s own workmen. In order to produce that result, the circumstances must, in my opinion, be such as to show conclusively that the servant submitted himself to the control of another person than his proper master, and either expressly or impliedly consented to accept that other person as his master for the purposes of the common employment.” This case is affirmed in Cameron v. Nystrom, [1893] App.Cas. 308. See, also, Ward v. Fibre Co., 154 Mass. 419, 28 N.E.Rep. 299; Svenson v. Steamship Co., 57 N.Y. 108;Sawyer v. Railroad Co., 27 Vt. 370;Zeigler v. Railroad Co., 52 Conn. 543;Philadelphia, W. & B.R. Co. v. State, 58 Md. 372;Phillips v. Railway Co., 64 Wis. 475,25 N.W.Rep. 544.

Although the servants of different contractors, while engaged in working together on a building, are in a common employment, they are not fellow servants, unless they have a common master. In Johnson v. Lindsay, ubi supra, the plaintiff was a workman employed by Higgs & Hill, who had made a contract with the architect of the owners of a parcel of land to erect a block of buildings upon it. By the terms of the contract, Higgs & Hill were to provide a certain sum to be paid to Lindsay & Co., or any other firm approved by the architect, for fireproof flats and floors. Before the contract was made with Higgs & Hill, the architect had received an offer from the defendants for the fireproof flats and floors, and when the building was ready for the work the architect directed the defendants to go on with it. There was no evidence that Higgs and Hill ever attempted to interfere with the defendants' work, or to assume control over their servants. In the course of the work, the plaintiff was injured by the negligence of a servant of the defendants; and it was held, reversing the judgment of the court of appeal, (23 Q.B.Div. 508,) that the plaintiff was entitled to recover. In the cases at bar, the jury would have been warranted in finding that the plaintiff did not cease to be a servant of Flannagan, and that he remained under his control, or that of his foreman, while engaged in doing the extra work. There was evidence that Flannagan's men did not know whether they were working on extra work, or contract...