Samuelian v. American Tool & MaCh. Co.

• Citation: 168 Mass. 12,46 N.E. 98
• Parties: SAMUELIAN v. AMERICAN TOOL & MACHINE CO.
• Decision Date: 26 February 1897
• Court: United States State Supreme Judicial Court of Massachusetts

168 Mass. 12

46 N.E. 98

SAMUELIAN v. AMERICAN TOOL & MACHINE CO.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1897

One Guell, a machinist in the general employ of defendant, was sent by defendant to the Collins Press Corporation, at its request, for the purpose of repairing a press. In making the repairs, plaintiff, an employé of the press company, was injured, through Guell's alleged negligence.

COUNSEL

Anson M. Lyman, for plaintiff.

George E. Smoth and William F. Garcelon, for defendant.

OPINION

KNOWLTON J.

The only ground on which the plaintiff seeks to hold the defendant liable is that Guell was engaged as a servant of the defendant in the work in which he is alleged to have been negligent. The burden of proof was on the plaintiff to show this. There was no evidence to sustain this burden. Upon the undisputed testimony, Guell was repairing machinery of the Collins Press Company, and the defendant had no other connection with the business than to send him to do, in the service of this corporation, under the direction of its agents, whatever they wanted him to do in repairing the machinery. There was no evidence that tended to contradict the testimony that, while he was engaged in this service, he was under the control of these agents, who could at any moment tell him to stop or go forward with the work, and could insist that it should be done in one way or another, as they should think best. The fact that they relied largely upon his skill and experience did not affect their absolute right to control him in everything he did upon their machinery. He was therefore, for the time, the servant of the Collins Press Company, and not of the defendant.

The law in cases of this kind has often been considered by this court, and is well settled. In Ward v. Fibre Co., 154 Mass. 419, 28 N.E. 299, is this language: "The defendant corporation contends that although he was in the general service of Manchester and Ward, and received his pay from them, he consented that they should set him at the defendant's work, to be paid for by the defendant according to the time spent upon it, and to be done according to specifications prepared by the defendant's superintendent, and to be managed and directed by the superintendent during its progress. If this were so, he would be the defendant's servant in the particular business notwithstanding that in a general sense he was a servant of...