Winslow v. Wellington

• Decision Date: 03 November 1920
• Docket Number: No. 1665.,1665.
• Citation: 111 A. 631
• Parties: WINSLOW v. WELLINGTON.
• Court: New Hampshire Supreme Court

111 A. 631

WINSLOW

v. WELLINGTON.

No. 1665.

Supreme Court of New Hampshire. Hillsborough.

Nov. 3, 1920.

Transferred from Superior Court, Hillsborough County; Marble, Judge.

Action by Worcester L. Winslow against J, Frank Wellington. Transferred on defendant's exceptions to the denial of his motion for a directed verdict and to the charge. Exceptions overruled.

The plaintiff, who was an employe of John W. Flannigan, was injured by the collapse of the staging on which he stood to plaster one of the halls in the defendant's house. The defendant testified that he made a contract with Frank Smith by which Smith was to purchase the materials, hire the men, and build the house in accordance with the plans and specifications furnished by his architect, that he paid Smith what the materials and labor cost, $4 a day for his services, and a small commission on some of the materials and on the men he employed, and that he retained no control over the details of the work.

The evidence tended to prove that the defendant purchased the hardware and some of the lumber for the house, and employed the men who did the masonwork, the painting, and the papering, that Smith made no important purchase without consulting the defendant, and that the defendant could make any changes in the work or the way of doing it that he saw fit and could discharge Smith at any time.

Doyle & Doyle, of Nashua, for plaintiff.

Warren, Howe & Wilson, of Manchester, for defendant.

YOUNG, J. It can be found that Smith was subject to the defendant's control in respect to the details of the work; consequently it can be found that he was not an independent contractor. Paro v. Whitefield Sav. Bank & Trust Co., 77 N. H. 394, 92 Atl. 331. It cannot be said, therefore, that the court erred when it denied the defendant's motion for a directed verdict, for it can be found that the staging was defective, and that Smith was acting for the defendant when he built it.

The court first instructed the jury as to the test it should apply to determine whether Smith was an independent contractor, and then instructed it that, if it found that Smith was an independent contractor, and as such employed Flannigan to do the plastering, that was the end of the case. The defendant, in excepting to this, said:

"My contention is that, if the jury find that Smith was an independent contractor, that is the end of the case in respect to who employed Flannigan. I want to except to any other inference on the charge."

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