Rait v. New England Furniture & Carpet Co.

• Decision Date: 21 October 1896
• Citation: 66 Minn. 76,68 N.W. 729
• Court: Minnesota Supreme Court
• Parties: RAIT v NEW ENGLAND FURNITURE & CARPET CO.

66 Minn. 76

68 N.W. 729

RAITvNEW ENGLAND FURNITURE & CARPET CO.

Supreme Court of Minnesota.

Oct. 21, 1896.

(Syllabus by the Court.)

1. Held that, under the evidence, there was no error prejudicial to the defendant in the court's submitting to the jury the question whether the person who did the wrong for which it was sought to hold the defendant liable was or was not an independent contractor.

2. The decisive question in determining whether the doctrine of respondeat superior applies is whether the defendant had, under the contract of employment, the right to control, in the given particular, the conduct of the person doing the wrong.

Appeal from district court, Hennepin county; Henry C. Belden, Judge.

Action by James M. Rait against the New England Furniture & Carpet Company. Verdict for plaintiff. From an order refusing a new trial, defendant appeals. Affirmed.

Keith, Evans, Thompson & Fairchild, for appellant.

Shaw, Cray, Lancaster & Parker, for respondent.

MITCHELL, J.

Defendant's counsel, in their brief, disclaim any desire for a new trial, and expressly consent and request that the order appealed from be affirmed, unless this court shall hold that, upon the record, the plaintiff was not entitled to a verdict; that is, as we understand it, unless we shall hold that, upon the record, defendant was entitled to have a verdict directed in its favor. The case is therefore reduced to very narrow limits. The action was brought to recover for personal injuries caused by the alleged negligence of the defendant in throwing ice and snow from the roof of its building into the street below, which struck the plaintiff as he was passing by, and caused the injuries complained of. It is not denied that the question whether the act itself was negligent was, under the evidence, for the jury. But the main question litigated was whether the person who was having the snow and ice removed was or was not an independent contractor. The trial court submitted that question to the jury as one of fact. The contention of the defendant is that the court should have held, as a matter of law, that the party was an independent contractor. This presents the only question which we find it necessary to consider. The building in question was occupied by the defendant as a furniture store. Defendant had been annoyed by the roof leaking, caused by the accumulation of ice and snow, and the president of the company employed one Dinsmore, whose general occupation was that of contractor and builder, to repair the roof, so as to stop the leak. The only evidence as to the terms of the contract of employment is the testimony of the president and Dinsmore. The president's testimony was as follows: “Q. Well, you asked him if he could stop that leak, did you? A. I did. He said, ‘I can.’ ‘Well,’ I says, ‘if you can, I will be very much obliged to you. I wish you would go ahead and stop it. If you will go ahead and stop it, and not bother me about the details of it, I shall be under great obligations to you; and, when you get it done, bring in your bill, and I will pay it.’ Mr. Dinsmore says, ‘I can fix it for you, and I will go ahead as you tell me to.’ ‘Well,’ I says, ‘go ahead, and don't bother me about it. Fix it up, and bring me the bill.”’ Dinsmore testified as follows: “Q. What was that conversation, Mr. Dinsmore? A. As I remember it, Mr. Harris came along on the sidewalk. I was out in...