Tierney v. Correia

• Decision Date: 27 June 1935
• Court: Connecticut Supreme Court
• Parties: TIERNEY v. CORREIA et al.

180 A. 282

120 Conn. 140

TIERNEY v. CORREIA et al.

Supreme Court of Errors of Connecticut.

June 27, 1935

Appeal from Superior Court, Litchfield County; John Richards Booth Judge.

Action by Thomas V. Tierney against August Correia, Town of Canton and D. Maselli & Son, Incorporated, to recover for personal injuries alleged to have been caused by defendant's negligence. From a directed verdict in favor of the Town of Canton and a verdict and judgment against the two remaining defendants, plaintiff and the defendants, against whom judgment was recovered, appeal.

Judgment reversed, and cause remanded for a new trial as to plaintiff and D. Maselli & Son; judgment affirmed as to August Correia.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

Howard F. Landon, of Salisbury, and J. Clinton Roraback, of Canaan, for plaintiff appellant.

Jacob Schwolsky, of Hartford, for appellants D. Maselli & Son, Inc., and Correia.

Olcott D. Smith, of Hartford (Joseph F. Berry, of Hartford, on the brief), for appellee Town of Canton.

BANKS Judge.

Plaintiff was an occupant of an automobile which came into collision in the town of Canton with a truck owned by the defendant D. Maselli & Son, Inc. (hereinafter referred to as Maselli), and driven by the defendant Correia. The defendant town of Canton was engaged in the construction of a highway, and the truck with which plaintiff's car collided was being used in that work. Upon these appeals it appears not to be questioned that the jury could reasonably have found that plaintiff's injuries were caused by the negligence of the defendant Correia, the driver of the truck. A contested issue upon the trial was whether Maselli or the town was responsible for Correia's negligence in the operation of the truck. The trial court directed the jury to bring in a verdict in favor of the town, holding that it could not be held responsible for Correia's negligence for two reasons: First, because, as it ruled, Maselli was an independent contractor for the negligence of whose employee the town was not liable; and, second, because, in the construction of this road, the town was engaged in the performance of a governmental function. The plaintiff's appeal is from this action of the trial court.

The jury could reasonably have found the following relevant facts: During the summer and fall of 1932 the town of Canton was engaged in constructing and improving a public highway, under the provisions of the so-called Dirt Roads Act, General Statutes Cum. Supp. 1931, c. 79, § § 258a to 264a, inclusive. The work was being done by the town under a contract between it and the state of Connecticut by the state highway commissioner, executed August 12, 1932, by the terms of which the town agreed to do the work specified therein for the construction of about two miles of road at certain unit prices. The town contracted with Maselli as a subcontractor to do certain excavating of earth and rock necessary in the construction of the road, at certain unit prices. This work was completed on October 17, 1932. The town then hired from Maselli a truck and driver for work upon the construction of the road which was not then completed. It was this truck and driver which were involved in the accident which took place on October 28, 1932. The town claimed that Maselli's job was not finished at the time of the accident, and that, since his contract was to do certain specified work at a fixed price, he was an independent contractor for the negligence of whose employees the town was not responsible. Welz v. Manzillo, 113 Conn. 674, 680, 155 A. 841; Pribulo v. Chiarelli, 114 Conn. 32, 157 A. 420. The trial court apparently adopted this view of the situation in its direction of a verdict in favor of the town. There was, however, evidence from which the jury could have found that Maselli's contract with the town had been completed on October 17th. Since this was prior to the date of the accident, the court was not justified in directing a verdict for the town upon the ground that the accident resulted from the negligence of an employee of Maselli while he was performing the work under his contract with the town as an independent contractor.

It was the claim of the plaintiff and of the defendant Maselli that Correia, though in the general employment of Maselli, was, at the time of the accident, an employee loaned to the town which was consequently responsible for his conduct. The town contends that even if the jury might have found that Maselli had completed his contract prior to the date of the accident and was not then operating as an independent contractor, there was no evidence from which it could find that Correia was a loaned employee, and that therefore the court was justified in directing a verdict in its favor for that reason. With reference to this claim the jury could reasonably have found the following facts: After Maselli had completed his excavating contract with the town, the latter hired from him a truck and driver to be used in its road construction work for the agreed price of $2 an hour. The driver was in the general employment of Maselli, who paid his wages while the truck was being used by the town, principally for the carting of gravel. The town paid for the gasoline and oil used in operating the truck. The driver reported to the selectmen of the town in charge of the road construction work who told him where to get the gravel and where to take it. This selectman sometimes rode on the truck. He told the driver what to do, and had general supervision and control of his work.

The master is held responsible for the conduct of his servant within the scope of his employment because it is the master's business upon which the servant is engaged, and it is carried on under the master's direction and control. When one hires from another an instrumentality to be operated by one who is in the latter's general employment, the question arises as to who is responsible for the conduct of the operator. That person is responsible in whose business the operator was engaged at the time his conduct comes into question. He is in the general employment of the owner of the machine, but is engaged in performing the work for which the machine was hired. The question is whether the business upon which he is engaged is that of his general employer or that of the machine. That is determined by the extent of the control which the person whose work is being done had over him, whether he had control merely for the purpose of accomplishing the result intended, or had complete control over him as to all he did in the operation of the machine. If the former, the operator of the machine is engaged in the business of his general employer; if the latter, in that of the hirer of the machine. " ‘ The test is whether, in the particular service which he is engaged to perform, he continues liable to the direction and control of his master, or becomes subject to that of the party to whom he is lent or hired." ’ Scribner's Case, 231 Mass. 133, 134, 120 N.E. 350, 3 A.L.R. 1178; Parsons v. M. J. Daly & Sons, 114 Conn. 143, 149, 153 A. 216. In the case where a liveryman furnishes a carriage with horses and a driver, or an automobile and a chauffeur, and the only control exercised by the hirer is in directing where he wishes to be driven, it has been generally held that, in the absence of a specific direction which brings about the negligent act, the hirer is not responsible for such act of the driver, who remains the servant of the owner of the vehicle, and engaged in his business, which is that of renting such conveyance. Standard Oil Co. v. Anderson, 212 U.S. 215, 221, 29 S.Ct. 252, 53 L.Ed. 480; Shepard v. Jacob, 204 Mass. 110, 90 N.E. 392, 26 L.R.A. (N. S.) 442, 134 Am.St.Rep. 648.

When however, an instrumentality, such as the truck here involved, is hired with an operator for use in some work undertaken by the hirer, who is in charge of the work and directs how it shall be carried on, the question whether the operator is subject to the direction and control of the owner or of the hirer of the truck is ordinarily one of fact to be determined from all the circumstances of the particular case. " Ordinarily no one fact is decisive. The payment of wages; the right to hire or discharge; the right to direct the servant where to go, and what to do; the custody or ownership of the tools and appliances he may use in his work; the business in which the master is engaged or that of him said to be the special employer-none of these things give us an infallible test. At times any or all of them may be considered. The question remains: In whose business was the servant engaged at the time?" Braxton v. Mendelson, 233 N.Y. 122, 124, 135 N.E. 198. Though the governing principle is well settled, we find different courts and juries reaching opposite conclusions upon...