Wray v. Evans

• Decision Date: 06 January 1876
• Citation: 80 Pa. 102
• Parties: Wray <I>versus</I> Evans.
• Court: Pennsylvania Supreme Court

80 Pa. 102

Wray versus Evans.

Supreme Court of Pennsylvania.

November __, 1875.

January 6, 1876.

November __ 1875.

Before AGNEW, C. J., SHARSWOOD, WILLIAMS, MERCUR, GORDON, PAXSON and WOODWARD, JJ.

Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1875, No. 148.

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S. M. Raymond and C. B. M. Smith, for plaintiff in error.—The power retained in the defendant's contract with Davis to declare it void in case he failed to comply with the stipulations in defendant's contract with the company, did not impose a liability on defendant which would not exist without it: Reedie v. London & N. W. Railway Co., 4 Welsby, H. & G. 244; Quarman v. Burnett, 6 M. & W. 499. The defendant having no control over Davis or his men and not standing in the relation of principal, master or employer to him or them, was not responsible for their negligence: Painter v. Pittsburg, 10 Wright 213; Sadler v. Henloch, 4 E. & B. 570; Rapson v. Cubitt, 9 M. & W. 710; Allen v. Hayward, 7 Ad. & E. (N. S.) 960; Overton v. Freeman, 11 C. B. 867; Peachey v. Rowland, 13 Id. 182; Blake v. Ferris, 1 Selden 48; Hillyard v. Richardson, 3 Gray 349; De Forrest v. Wright, 2 Mich. 368; Linton v. Smith, 8 Gray 147. Whether the relation be that of master and servant is determined mainly by ascertaining from the contract of employment whether the employer retain the power of controlling the work: Forsyth v. Hooper, 11 Allen 419; Wood v. Cobb, 13 Id. 58; Coomes v. Houghton, 102 Mass. 211; Cuff v. Newark & N. J. Railroad Co., 35 N. J. 18; Wright v. Holbrook, 52 N. H. 120; Bissel v. Torrey, 65 Barb. 188; Hunt v. Penna. Railroad Co., 1 P. F. Smith 475; Allen v. Williard, 7 Id. 374; Woodward v. Webb, 15 Id. 254; Shearman & Redf. on Negligence, sect. 70-85.

The reporter received no paper-book from the defendant in error.

Mr. Justice GORDON delivered the opinion of the court, January 6th 1876.

In the case of Painter v. The Mayor, &c., of the City of Pittsburg, 10 Wright 213 (STRONG, J., delivering the opinion of the court), it was held that it is the settled law, both in England and in this country, as ascertained by the decided preponderance of authorities, that persons not personally interfering with or directing the progress of a work, but contracting with third parties to do it, are not responsible for a wrongful act done, or for negligence in the performance of the contract, if the act agreed to be done be lawful.

Hence, it was held, that the city was not responsible for an injury occasioned by the negligence of those who contracted with it to do certain work, or of their agents or servants, and that the remedy for such injury was against the contractors alone.

The conclusions drawn from all the more recent authorities including the above, may be formulated thus: the immediate employer of the agent or servant, who causes the injury, is alone responsible for such injury; to him alone the rule of respondeat superior applies, and there cannot be two superiors severally responsible.

Let us now recur to the facts of this case. By agreement between the Pittsburg Gas Co. and James T. Wray, the latter undertook to dig a trench, in which to lay the gas pipes of said company, in Gas street and Second avenue, from the works of said company to the gas holder, in the Fourteenth ward of the city of Pittsburg. This work was to be done under the supervision of the company's engineer. It was also part of the contract, that should Wray, at any time, neglect or refuse to supply a sufficiency of material or workmen to execute the work properly, the company might furnish the same, after giving three days' notice, and charge the same over to Wray.

By a sub-contract, similar in its terms, except that if the work was not done to the satisfaction of the gas company's engineer, the contract was to be forfeited on two days' notice, Wray passed the job to Michael Davis. Each of the contracts contained a covenant that the contractor should be responsible for...