Thе plaintiff in error owned and occupied certain premises in Detroit upon which was an ice-house. Desiring t# fill this house with ice, he obtained a license from the city to incumber the рublic street passing the premises, for the accomplishment of that object. He then hirеd one Kehl to fill the house, and agreed to pay him therefor two dollars and fifty cents pеr cord. Kehl in doing this work, left a pile of blocks and fragments of ice (covered with snow), of considerable size, and extending from the premises from six to nine feet out into the street. The dеfendant in
In the opinion of the majority of the court if was said, thаt "when the relation of principal and agent, or master and servant, exists, the rule of respondeat superior is applicable, but not when the relation is that of contractor only. In all ordinary transactiоns the relation of contractor excludes that of principal and agent, or mastеr and servant. But there is not necessarily such a repugnance between them that they cаnnot exist together. The difference between them is, that a contractor acts in his own right and for himself, ’ whereas an agent or servant acts for and in the name of another.” The majority of the court considered the city liable upon the ground that while the contractors acted for themselves, they were at the same time, and in respect to the acts cоmplained of, the agents of the-city. And it was observed that the sole right they had for making the excavation was as agents for the city; sine© if they had been proceeded- against' by indictment for creating a public nuisance they could not have justified in their own right, but only as agents of the city undеr their
The business of Kehl was to pack, on the premises ■owned and occupied by the plaintiff in error, an amount of ice equal to the capacity of the house, and for which he was -to be paid an -agreed price per cord. The arrangement neither implied nor contemplated that Kehl should be master of the possession, or have any other or further right of entry than such as would be reasonably invоlved in his hiring to put up the ice; and the plaintiff in error 'doe's not appear to have invеsted him with any exclusive -authority as to the style in which the work should be done, »or to have waived thе right to interpose and ■■direct as -to the mode of doing it.
The work was to be done for plаintiff in error, and under the protection of a license given by the city to him. ,as a personаl privilege; and it cannot be presumed to have been understood that this license should be used as Kehl might choose, though contrary to its spirit or beyond its import. The license was obtained by the plaintiff in error as his own shield in carrying on a -piece of work by and for himself, and the wоrk was done under it by himself by means of Kehl, who was his instrument. If Kehl had been prosecuted for creаting a public nuisance, he could not have “justified in his own right,” but would have been compelled “to justify as agent” of the plaintiff in :error under his contract. I am therefore of opinion -that -the relations between Kehl and plaintiff in error were such in respect to the creation of the mischievous obstruction as to implicate the latter in responsibility for injuries to third parties not in fault. — See Sadler v. Henlock, 4 El. & B., 570.