Ward v. New England Fiber Co.

• Decision Date: 24 September 1891
• Citation: 28 N.E. 299,154 Mass. 419
• Parties: WARD v. NEW ENGLAND FIBER CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

154 Mass. 419

28 N.E. 299

WARD v. NEW ENGLAND FIBER CO.

Supreme Judicial Court of Massachusetts, Franklin.

September 24, 1891

COUNSEL

W.G. Basset, for plaintiff.

F.G Fessenden, for defendant.

OPINION

KNOWLTON J.

The only question in this case is whether, upon the undisputed facts, the plaintiff was a servant of the defendant and a fellow-servant of the employes of the defendant, by whose negligence he was injured. He was working by the month for Manchester & Ward, who were engaged in putting a hopper into the defendant's pulp-mill. The specifications for the hopper were made by the defendant's superintendent, and the materials were furnished by Manchester & Ward, and the work was done by their employes. They were to charge for their materials and the time of their men. At the time of the accident the plaintiff was in the defendant's mill at work upon the hopper. The defendant corporation contends that, although he was in the general service of Manchester & Ward, and received his pay from them, he consented that they should set him to do 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 defendant during its progress. If this was so, he would be the defendant's servant in the particular business, notwithstanding that in a general sense he was a servant of Manchester & Ward. Johnson v. Boston, 118 Mass. 114; Harkins v. Sugar Refinery, 122 Mass. 400; Kimball v. Cushman, 103 Mass. 194; Wood v Cobb, 13 Allen, 58. On the other hand, if the defendant arranged with Manchester & Ward to make and set up a hopper in the defendant's mill according to certain specifications, and to charge a reasonable price for the materials furnished and the time spent in doing it Manchester & Ward, after having entered into the arrangement, would have a right to go on and complete the hopper, and to be paid for it, and to furnish and control the men engaged upon it, and to direct their work. In that case the title to the materials used in constructing the hopper would not pass to the defendant until the hopper was complete and put in place, and the men who did the work would be the servants of the contractors.

On the exceptions we cannot say as a matter of law what the nature of the arrangement was. The plaintiff testified as follows "Word came by a man sent from the defendant's mill to do the job. Strahan sent the order. The hopper was made according to the specifications and plan which were sent." Myron P. Ward,...