Paull v. Radlo
| Decision Date | 25 February 1936 |
| Parties | KATHRYN J. PAULL v. ROSE A. RADLO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
January 14, 1936.
Present: RUGG, C.
J., CROSBY, FIELD DONAHUE, & LUMMUS, JJ.
Evidence Presumptions and burden of proof. Negligence, Employer's liability. Agency, Scope of authority, What constitutes Independent contractor.
A finding for the plaintiff, in an action by a shop girl against her employer for personal injuries resulting from a fall upon linoleum negligently left oily by an employee of the defendant, was warranted although the defendant expressly had forbidden the employee to use oil, it appearing that there was evidence that the employee was to use his own judgment as to how the work was to be done and that the oiling of the linoleum was done in the course of his employment.
Evidence, that the employer of one hired by the week to sweep and clean a shop did not exercise any control over him, but that he used his own judgment in doing the work, did not as a matter of law make him an independent contractor rather than a servant: the test of the relationship is the right to control.
If, at the trial of an action, the plaintiff relies on testimony of other witnesses as well as on his own respecting liability of the defendant, it is proper to refuse to rule that "As matter of law the plaintiff is bound by" his "own testimony and cannot prevail in this action upon said testimony."
TORT for personal injuries. Writ in the Municipal Court of the City of Boston dated January 20, 1933.
The only averment in the declaration as to the cause of the personal injuries was that they resulted from "the negligence of the defendant, her servants, agents or employees." There was no bill of particulars.
In the Municipal Court the action was heard by Good, J., who found for the plaintiff in the sum of $1,500 and reported the action to the Appellate Division, which ordered the report dismissed. The defendant appealed.
J. B. Abrams, for the defendant. J. B. Sly, for the plaintiff.
The plaintiff seeks to recover for personal injuries received on March 10, 1932, while in the employ of the defendant, who was not a subscriber under the workmen's compensation act. G.L. (Ter. Ed.) c. 152. At the time of the alleged injuries the plaintiff was a saleswoman in the defendant's store. She testified that her injuries were the result of slipping and falling on the floor which was covered with linoleum and had been oiled.
The plaintiff called as a witness one Whiting who testified that he was a janitor for the George Robert White Fund, the owner of the building in which the defendant's store was located; that he was employed directly by the owner of the building; that the defendant employed him to clean her store in the morning and that he was employed "to vacuum the carpet there and sweep around the border which was linoleum and occasionally he would wipe that up with warm water." He further testified that on the day of the accident the plaintiff was sitting in a chair and seemed faint; that the linoleum looked a little white and to brighten it he rubbed some O-Cedar polish on it with a small piece of cloth and wiped it with another cloth; that he had never used that polish on the floor before; that he put the polish on the floor at about 9:30 o'clock; that he did not intend to leave it wet; and that he applied only a sufficient amount to brighten up the linoleum. He further testified "that he had a talk with the defendant several days after the accident; that the defendant said, `I didn't tell you to put any polish on the floor'; and that the witness had nothing to say because he knew she was telling the truth." On cross-examination he stated that the defendant did not exercise any control over him; and that the store was covered by a large carpet or rug with the exception of a small border about three feet wide which was covered by linoleum. On redirect examination he testified that when he finished polishing the floor he did not look to see if there were any wet places on it; and that he did not look to see whether there was any oil on the plaintiff's clothes when he saw her sitting on the chair near where she fell.
The plaintiff testified that at the time the accident occurred she had dusted her desk, and walked over to dust the desk used by customers; that she fell while going from her desk to that of the customers; that she had fallen practically "face first although she was conscious of her heel slipping"; that she noticed a great deal of oil on the linoleum where she fell, and that she was in it; that her hands "were full of oil"; and that there was also oil on her clothing on the side where she had fallen. She testified on cross-examination that she was told that she had testified, ; that later she corrected that statement and said that she was stunned; that there was oil on her hand and on her clothes; that the girls in the store wiped the oil off her hands; that the oil on her dress was shown to her; and that three of the girls pointed out oil on the floor where she fell.
The defendant testified that her agreement with the janitor Whiting was that "he was to clean up the carpet, to vacuum the carpet and dust around"; that she paid him $4.50 per week; that she gave him specific instructions never to use any polish on the furniture or the floors or the linoleum of her store; that she did not supply him with any materials that she asked him what happened, and he stated "that he just simply polished the linoleum up a little"; that she asked him "what right he had to use anything when she wanted the place with a dull finish," and he stated that "he was sorry he had done anything, but that he had just simply done it on his own accord"; and that "before she hired Whiting, he wanted to use polish and she told him not to use any polish on any of her things because she did not wish any gloss -- only a...
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