112 Mass. 96 | Mass. | 1873
The negligent act which caused the injury to the plaintiff was the act of Mulholland; and the defendant is not liable for it unless Mulholland was his agent or servant. The fact that it was done in making improvements upon the land of the defendant, for his benefit and at his expense, does not necessarily render him liable. The question is, whether the relation between the defendant and Mulholland was that of master and servant. In Brackett v. Lubke, 4 Allen, 138, Bigelow, C. J., says : “ The distinction on which all the cases turn is this : If the person employed to do the work carries on an independent employment, and acts in pursuance of a contract with his employer by which he has agreed to do the work on certain specified terms, in a particular manner and for a specified price, then the employer is not liable. The relation of master and servant does not subsist between the parties, but only that of contractor and contractee. The power of directing and controlling the work is parted with by the employer, and given to the contractor. But on the other hand, if work is done under a general employment, and is to be performed for a reasonable compensation or for a stipulated price, the employer remains liable, because he retains the right and power of directing and controlling the time and manner of executing the work, or of refraining from doing it, if he deems it necessary or expedient.” This distinction is recognized in other adjudged cases. Forsyth v. Hooper, 11 Allen, 419.
In the ease at bar, the relation between Mulholland and the defendant was that of contractor and contractee. The defendant is not liable for the acts or negligence of the contractor in the performance of the work, unless he was without proper skill or unsuitable to do the work, or unless the work contracted for created a nuisance to the injury of another. The instructions at the trial were in accordance with these well established principles.
Exceptions overruled.
