Wilbur v. Forgione & Romano Co.

• Decision Date: 04 December 1912
• Citation: Wilbur v. Forgione & Romano Co., 109 Me. 521, 85 A. 48 (Me. 1912)
• Parties: WILBUR v. FORGIONE & ROMANO CO. et al.
• Court: Maine Supreme Court

85 A. 48

109 Me. 521

WILBUR

v. FORGIONE & ROMANO CO. et al.

Supreme Judicial Court of Maine.

Dec. 4, 1912.

Report from Supreme Judicial Court, Cumberland County, at Law.

Action by David J. Wilbur against the Forgione & Romano Company, the Tyson Construction Company, trustee. On report, with the stipulation that, if in the opinion of the law court there is sufficient evidence to establish the liability of the defendant, the case is to be remanded for assessment of damages by a commission of three to be appointed by the court. Judgment for defendant.

Argued before WHITEHOUSE, C. J., and SAVAGE, SPEAR, CORNISH, KING, and HALEY, JJ.

Symonds, Snow, Cook & Hutchinson, of Portland, for plaintiff.

Arthur Chapman and Foster & Foster, all of Portland, for principal defendant. Eaton, Keene & Gardner, of Portland, for trustee.

CORNISH, J. On report, with the stipulation that, if in the opinion of the law court there is sufficient evidence to establish the liability of the defendant, the case is to be remanded for assessment of damages by a commission of three to be appointed by the court.

The conceded facts are these: In July, 1911, the Tyson Construction Company were the general contractors in erecting an addition to the store of Porteous, Mitchell & Braun Company on Congress street in the city of Portland and in extending the rear of the store to Free street. The work of making the necessary excavation was sublet to the defendant. The shoring of the adjacent buildings was sublet to the Isaac Blair Company, and the plaintiff was one of the Blair Company employes.

On the day of the accident, the plaintiff, in the course of his employment, was working upon a ladder at a height of about 28 feet from the ground, the bottom of the ladder resting in the excavation on the Free street lot and the top against the wall or chimney of an adjoining house. A team consisting of a pair of horses and a dump cart, loaded with rock, on its way out from the excavation, came in contact with this ladder throwing the plaintiff to the ground. This team was owned by the Cash Fuel Company, and with its driver, Marston, had been left by the Cash Fuel Company to the defendant to assist in the removal of rock. It was one of several employed in the same work, one being owned by the defendant, two by the Cash Fuel Company, and the others by various other persons or concerns.

The Cash Fuel Company was engaged in the sale of coal and wood, but, as there was little for its teams to do at that season, it entered into an agreement with the defendant whereby the defendant was to pay it the sum of $5 per day for the use of each team and driver as long as the defendant saw fit to employ them. The general manager of the Cash Fuel Company, a witness for the plaintiff, on being asked what arrangement he made with the defendant, replied: "To hire two teams to him with dump carts, two horses and a man. He was to pay for the use of them $5 a day." On being asked what instructions he gave the drivers, he replied that he told them to report to Forgione, and to tell him whose teams they were, where they came from, but he had nothing to say as to what the teams should do after arrival. It was a typical case of letting a team with driver for special work. The Fuel Company selected, hired, and paid the drivers for its teams, and with that the defendant had nothing to do. If the defendant was not satisfied with a driver, it could doubtless have sent back the team and driver, but could not have substituted a driver of its own selection.

This being the state of facts, the plaintiff rests his contention upon one of two propositions. First, that the defendant was negligent in ordering the team in question to be loaded and driven in such close proximity to the ladder as to cause the accident; or, second, that Marston, the driver of the team, was at the time in the performance of the defendant's business as its servant, and his negligence was in law the defendant's negligence.

The first step to be taken in the solution of this problem is to ascertain what was the proximate cause of the accident. That is a question of fact. It is undisputed that this team had been loading with rocks in the rear of the Free street excavation, with the horses' heads pointed toward Congress street. On the way out it passed the ladder on which the plaintiff stood. The plaintiff claimed that the rear end of the cart was at an elevation of two or three feet while being loaded, the rear wheels being trigged; that, when the cart was full, the trig was removed, and the driver started on his way; that, as he was nearly abreast the ladder, the left forward wheel struck a solid projecting rock about the size of a derby hat, causing the pole and the yoke to swerve toward the left and strike the ladder. The burden was upon the plaintiff to establish this claim by a preponderance of the evidence. This we think he failed to do, but, on the contrary, the fair conclusion to be reached from all the evidence in the case is that no projecting rock caused the accident, but, when the cart was full, the driver in leaping upon the seat and gathering up the reins in some way, perhaps accidentally, pulled on the wrong rein, turned the horses toward the left, and thereby came in contact with the ladder. It would be profitless to discuss in detail the evidence leading to this conclusion. It is sufficient to state the conclusion itself. The direct and immediate cause, therefore, was the manner in which the team was handled by the driver, and not a condition of the ground in the excavated cellar.

It is not necessary to decide in this action whether, under all the circumstances of the case, the kind of work that was going on, and the rough place in which it was necessarily performed, the driver was or not in the exercise of due care, but, assuming that his act was a negligent one, was the defendant legally responsible for that act? That depends upon whether the driver was, at the moment of the injury to the plaintiff, and in the particular work he was then engaged upon, the servant of the defendant, the general contractor, or of the Cash Fuel Company, his immediate employer.

Under the long line of decisions both in this country and England the court is of the opinion that he was not at the time the servant of the defendant.

It is true that a person admittedly in the general employment of one person may be lent or hired to another in such a way as to become the servant of the other for the time being and in a particular transaction, with all the legal consequences of the new relation. Wyman v. Berry, 106 Me. 43, 75 Atl. 123, 20 Ann. Cas. 439. But, as was stated by Chief Justice Holmes in Driscoll v. Towle, 181 Mass. 416, 63 N. E. 922: "The mere fact that a servant is sent to do work pointed out to him by a person who has made a bargain with his master does not make him that person's servant. More than that is necessary to take him out of the relation established by the only contract which he has made and to make him a voluntary subject of a new sovereign—as the master sometimes was called in the old books."

We must therefore determine whether in the particular act which caused the injury in this case, namely, the handling of the team, the driver was the servant of his original master, the Cash Fuel Company, or of the person to whom, with the team, he had been furnished, namely, the defendant, the general contractor.

The authorities give but one answer to this question. They hold that, in the absence of a special contract to the contrary or of interference, he remains the servant of his original master. The reason for this is apparent. Take the case at bar. The Cash Fuel Company hired whom it pleased to care for, manage, and drive its teams. It paid them and discharged them. With their selection, payment, and discharge the defendant had nothing whatever to do, and it was no part of the duty of the defendant to determine upon the fitness or unfitness of such drivers. It took the teams as manned and furnished, and the responsibility for the proper handling of...