Corbin v. American Mills

| Conn. | Mar 15, 1858

Ellsworth, J.

Several questions have been discussed in this case which we think it not necessary to decide, for there is one which lies at the foundation, about which we entertain no doubt. We are satisfied that the plaintiff can not be regarded as the hired servant and agent of the defendants at the time when the act was done which has subjected the plaintiff to the loss for which he seeks to recover an indemnity from the defendants.

Before we proceed to consider the case, we would remark that the form in which the question is presented is objectionable. The superior court, instead of finding the evidence of the fact of agency, should have found the fact itself, and not have left this court to decide upon the weight of evidence and to draw conclusions of fact. We allude to it here because this practice is becoming quite too common, and if persisted in we shall be compelled to refuse to try cases so irregularly brought before us. Had the judge undertaken to find whether the plaintiff and his servants were the hired servants and agents of the defendants, as alleged in the declaration, we think it quite possible the case would not have come here. But we pass the objection for this time, since the parties have been permitted to argue their case upon its merits, and we will proceed to make a final disposition of the matter in litigation.

In considering the true relation of the parties at the time to each other, it is essential to notice with discrimination the particular circumstances attending the transaction; for it is not easy, always, to determine whether the relation between the person employing another to do a job of work and the person employed, is one of master and servant, on which relation the question of indemnity depends, or is one of independence in the employee, in which case the latter and his servants are alone responsible for any injury done by them.

In the books diverse rules for pronouncing upon this question have been stated, but I must say not always with definiteness and perspicuity. Some lay it down that the manner of paying for the work or thing done, whether by the day or the job, is the rule; but this is not so; that is a circumstance to be considered, but not the criterion;—others, that the existence of actual present control and supervision on the part of the employer is the test; but of this we say, as of the former, that it is only a circumstance to be considered, though one of much weight. To get at the truth we must look further, and see if the person said to be a hired servant and agent is acting at the time for and in the place of his master, in accordance with and representing his master’s will and not his own. It must be strictly his employer’s business that he is doing and not in any respect his own. If we find this to be the case we may safely conclude, as a general rule, that the relation of master and servant exists, so as to render applicable the rule of law that the employer must indemnify and protect the agent he employs. Let us now look at the evidence detailed in this case.

In the spring of 1857 the plaintiff, a stone mason, contracted with the selectmen of the town of Vernon to widen a certain highway in the town, by removing out of it a ledge of rocks, for which service they stipulated to pay him a certain amount of money. The stone were to be his, except so far as they might be wanted to build and complete a wall by the way side. In August or September following the plaintiff and his men got out a quantity of the stones by blasting. These stones being in his way and obstructing the work he found it necessary to remove them, for which purpose, as well as to get a job as a mason, he proposed to the defendants, who owned a mill near by, with the stones on hand and such as he thereafter should blast out, to build for them a dam and breakwater; to which proposition they assented, and as a compensation agreed to pay him for his own services and the work of his men by the day, computing their time while occupied in getting out, carting and laying the stone; the defendants furnishing the powder and cement, and a derrick at the place of the dam.

The plaintiff proceeded to execute his contract with the selectmen of Vernon, with a gang of men of his own selection, until on a certain day one of his men, by an overcharge, blew a rock of some two tons upon the mill of a Mr. Stickney, crushing in the roof and doing other damage, for which the plaintiff has been sued and compelled to pay damages. For this he now seeks indemnity from the defendants, insisting that he and his workmen were the hired servants and agents of the defendants.

Now we are not able to see any thing to justify such a claim. There clearly was not the relation of master and servant between the plaintiff and the defendants. The defendants had no control or supervision over the plaintiff’s work in blasting this ledge of rocks under the contract with the town of Vernon, and they could not have interfered or arrested the progress of the work had they desired to do so. .The plaintiff himself had the sole control and oversight of the work— hired his own men, as many as he pleased, set them to work as he pleased, and dismissed them if they did not serve him with fidelity. He was in no degree a hired servant of any body. He had bound himself to remove the ledge, and to the defendants he had bound himself that the stones should be laid in their dam and breakwater. In getting them out he could order the blasting here or there, one day or the next, in greater or lesser quantities, with powder or otherwise, according to his own judgment and interest, if he but got the road cleared in time, subject to no> other man’s will or direction. The fact that the plaintiff was to be paid by the day makes no difference, we think, though in a case of doubt this circumstance would have weight. On the whole we see nothing to distinguish this case from the ordinary case of a mechanic or master builder who agrees to furnish materials and build a house, and who is to be paid for his work by the day instead of receiving a gross sum for the job; and such a contractor is in no proper sense a hired servant or agent.

On this ground we advise judgment for the defendants.

In this opinion the other judges concurred.

Judgment for defendants advised.