124 P. 844 | Cal. | 1912
Plaintiff, who was a plasterer, was seriously hurt by a fall due to the breaking of a rope holding the platform upon which he was standing while at work. That he was badly injured is not controverted, and that at the time of the accident he was putting a coat of plaster upon the sides of an air shaft in one of the buildings of the German Hospital which the defendant corporation was constructing is also undenied. Judgment was given in favor of plaintiff for seven thousand five hundred dollars. From this judgment and from an order denying its motion for a new trial defendant appeals.
The principal attack of defendant's counsel on the judgment is based upon the argument to the effect that the plaintiff was employed by an independent contractor and not by defendant. A contract had been let for the construction of the hospital but the contractor failed to complete his work and thereafter the superintendent of the hospital, W.P. Barry, was appointed to take charge of the work and to see that the building should be completed in accordance with the plans and specifications prepared by the architect. In performing his duties, Barry, as he testified, sometimes made contracts and sometimes did not. He entered into a written arrangement with Smythe Brothers, for the work of plastering. By the terms of this agreement Smythe Brothers were to do all the work of plastering to be done in the group of buildings known as the German Hospital. They promised to perform their part of the contract in a thorough and workmanlike manner and in strict accordance with the plans and *120 specifications of defendant's architects. This writing also contains the following: —
"Should the said Smythe Brothers fail at any time to have sufficient men or materials so as to delay the general work, or neglect the same in any way, or act in any way unsatisfactory to architect it shall be in the power of said W.P. Barry to remove said Smythe Brothers from the work and continue the same without hinderance. All material necessary for said plastering to be purchased by said Smythe Brothers as required and they shall present a bill for the same monthly to the said German General Benevolent Society, adding to said bill five per cent of the same and five per cent of labor paid during the month said bills were contracted. All of the labor required in said plaster work shall be paid net by the German General Benevolent Society each week. On the final and satisfactory completion and acceptance of said work, said Smythe Brothers are to receive an additional five per cent of all bills, for material and all labor paid during the progress of the work."
Under this agreement the work went on. Plaintiff was put to work by Gauldie, who was the foreman for Smythe Brothers. Gauldie agreed with plaintiff how much the latter's pay should be, and his wages were handed to him by Gauldie. He testified that he took no orders from Barry, defendant's superintendent. On the witness stand Barry stated that no one but Smythe and his foreman had control over the plasterers. Their money was sometimes paid by checks, drawn by Barry in favor of Smythe Brothers, and sometimes sufficient sums of money for the wages were paid directly to Gualdie, foreman for the Smythes. The weekly receipts, signed by plaintiff and his coworkers, were given to Smythe Brothers and payment was acknowledged by them. The rope which broke and precipitated plaintiff down the airshaft was the property of defendant, but the court properly instructed the jury that that fact alone would not make defendant liable. The court gave the following instruction which may well be taken as the basis of the determination by the jury that Fay was a servant of the defendant corporation:
"You are instructed that where the owner of a building has certain work done thereon under another and pays that *121 other as his compensation therefor a percentage upon the cost of labor performed and materials furnished and the owner pays for the materials used and pays the men each week to perform the work and has the power to discharge them, then in that case the owner is the master and the men who do the work are the servants of the master or owner, and the person who is thus paid such a percentage as his compensation is only the agent of the owner and the men who do the work in such a case are the servants of the owner of the building."
This instruction ignored the elements of entire direction and control prescribed by section 2009 of the Civil Code, as defining the relation of master and servant. It overlooked the clear terms of the contract which did not give defendant the right to select or discharge the plasterers, but only to remove Smythe Brothers if at any time that firm should fail to have sufficient men or materials to prevent delay of the general work. As was said inCallan v. Bull,
Respondent's belief is that the jury found upon conflicting evidence that Fay was a servant of the German General Benevolent Society. Really there was no substantial conflict. It is true that Barry testified to his right to discharge men if they were drinking, idling, shirking, "or anything of that kind"; but he never did exercise that authority and there was no evidence of any contract, written or verbal, giving him powers in excess of those provided for in the agreement heretofore mentioned. Mere power to discharge men does not necessarily imply that they are the servants of the person possessing that authority. In Callan
v. Bull,
The only other matter requiring notice is the furnishing by defendant of the rope which broke and caused the accident. We are not unmindful of the rule that makes a principal responsible where he arbitrarily assumes to direct the employees of a subcontractor and thereby creates an unsafe place or furnishes an unsafe applicance for the conduct of their work. (Majors v.Connor,
The judgment and order are reversed.
Henshaw, J., and Lorigan, J., concurred.
Hearing in Bank denied. *124