Parker v. Taylor

• Decision Date: 03 July 1936
• Citation: 295 Mass. 51,3 N.E.2d 25
• Parties: PARKER v. TAYLOR. IRWIN v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

295 Mass. 51

3 N.E.2d 25

PARKER v. TAYLOR.

IRWIN v. SAME.

Supreme Judicial Court of Massachusetts, Middlesex.

July 3, 1936

Report from Superior Court, Middlesex County; Walsh, Judge.

Two actions of tort by Charles E. Parker and Raymond F. Irwin administrator, against Frank Taylor. On report from the superior court, where verdicts had been ordered for the defendant.

Judgment for the defendant in each case.

W. Temple, of Marlboro, for plaintiff Parker.

C. P Tucker, of Boston, for plaintiff Irwin.

J. T Pugh, of Boston, and J. M. Joslin, of Winchester, for defendant.

FIELD Justice.

These two actions of tort were tried together. One of them was brought by Charles E. Parker, the other by Raymond F. Irwin, administrator of the estate of James H. Irwin. They arose out of the breaking of a ladder used as the ‘ bed’ of a staging upon which Parker and the intestate Irwin were working, painting the defendant's house. Both fell when the ladder broke and were injured. Irwin died about two weeks after the accident.

The declaration in the Parker case is in one count at common law for negligence of the defendant in furnishing a defective staging.

The declaration in the Irwin case is in four counts: (1) a count at common law for negligence of the defendant in furnishing a defective staging, (2) a count at common law under an alleged special contract to furnish a staging and for negligence in furnishing a defective staging, (3) a count under the Employers' Liability Act for personal injury resulting in the death of the intestate caused by reason of a ‘ defect in ways, works, machinery or equipment ‘ connected with and used in the painting business of defendant’ ' and (4) a count under the Employers' Liability Act for conscious suffering of the intestate resulting from such personal injury. See G.L.(Ter.Ed.) c. 153, § 1; c. 229, §§ 4, 7.

The judge, in each case, being of opinion that there was no evidence of negligence of the defendant, directed a verdict for him and reported the case upon a stipulation that if the verdict was directed rightly judgment should be entered thereon, but if not, judgment in an agreed amount should be entered for the plaintiff.

The evidence in its aspect most favorable to the plaintiffs tended to show these facts: The plaintiff Parker was a master painter of fifty years experience and ‘ the owner of painter's gear, consisting of ladders, tackle, etc., used in painting buildings.’ The intestate Irwin was a painter of many years' experience. The defendant was a manufacturer and owner of a mill, two tenement houses and two private garages adjacent thereto. He owned and lived in a house adjacent to the mill. Parker-according to his testimony-‘ talked * * * with the defendant who wanted his residence painted two coats. * * * he told defendant he would work for $4 a day and $1 a day for the gear, including brushes, the defendant to furnish best lead and oil for paint, which Parker was to mix; he told defendant he would have to have another man to help him; he knew a good man, Irwin, and would send him and defendant could hire him, and defendant later told him he had hired Irwin.’ The defendant and Parker together selected the colors. The defendant hired Irwin for $4 a day to help Parker and told Irwin ‘ the house was out there.’ The ‘ painter's gear’ was ‘ delivered by Parker on the defendant's premises,’ and on the same day or the next day Parker and Irwin began painting. Both Parker and Irwin were paid weekly by the defendant by cash or checks. Several times the defendant permitted two men from his mill to help the painters raise the ladders. The painters erected a staging using as the ‘ bed’ of it a ladder which was a part of the ‘ painter's gear’ belonging to Parker. While they were on the staging engaged in painting, the staging broke ‘ on both sides at a point approximately mid-way of the ladder’ and the painters fell and were injured, Irwin dying later as a result of his injuries. There was evidence that the ladder was defective. There was, however, no evidence that the defendant gave any instructions in respect to the method of using the ‘ painter's gear,’ erecting the staging or doing the painting, or had anything to do with erecting the staging.

1. The verdict was directed rightly for the defendant in the Parker case. The plaintiff in this case contends that he was a servant or employee of the defendant and not an independent contractor. He had the burden of proof on this issue. Sluzis' Case (Mass.) 198 N.E. 262. A finding that he was such a servant or employee was not warranted. The evidence tended to show that the plaintiff was an independent contractor for painting the defendant's house two coats, using the plaintiff's ‘ painting gear’ and being assisted by a painter to be hired by the defendant. But the evidence did not show, directly or by reasonable inference, the fact, essential to the existence of the relation of master and servant, of retention by the defendant of the right to direct and control this plaintiff in all the details of the work to be performed. So far as appears the plaintiff was responsible to the defendant only for accomplishing the result agreed upon in the way agreed upon. McDermott's Case, 283 Mass. 74, 76, 186 N.E. 231; Lappen v. Chaplik, 285 Mass. 65, 68, 188 N.E. 498. That the defendant furnished the paint and, with this plaintiff, selected the colors obviously is not inconsistent with this conclusion. Nor are the terms and mode of payment by weekly payments at a daily rate for this plaintiff's services and the use of his ‘ painter's gear’ in separate amounts inconsistent therewith. See Khoury v. Edison Electric Illuminating Co., 265 Mass. 236, 238, 164 N.E. 77, 60 A.L.R. 1159. So far as appears the plaintiff was in the ordinary position of an independent...