133 Ky. 19 | Ky. Ct. App. | 1909
Opinion of the Court by
Reversing.
Edward Messmer, a little boy 13 years of age, working under Charles Wommer at the factory of the Bell & Coggeshall Company, had his hand hurt by getting it in between some unprotected cogwheels, and brought this action to recover for his injury. A trial was had which resulted in a verdict, in his favor for $2,000. A new trial was granted, and a second triaJ was had, which resulted in a judgment and verdict for the defendant. The plaintiff appeals.
The defendant insisted on the trial that the boy was not in its employment, that Charles Wommer was an independent contractor, that he employed the boy, and that the boy was his servant. The court, at the conclusion of all the evidence, in effect instructed the jury that the Bell & Coggeshall Company was not liable for the negligence of Wommer, thus in effect holding that he was an independent-contractor; and this is in effect the only question to be decided on the appeal. There is in the factory of
On this question the boy testified as'follows: ¿‘Q. Was Mr. Wommer your boss? 'A. Yes; sir. 'Q; Who did he work for?'""A.'For Mr. Billy Palmer-and Mr. Stern and liis brother. 'Q. Who Were Stern and Palmer? Who were they?' A. Superintendents: -Q. Who was there in charge of Mr. Wommer, if anybody, who-■had control over Mr. Wommer? A. His brother and-Billy Palmer and Stern. Q. Who were Billy Palmer
P. T. Ricketts, a witness for the plaintiff, testified as follows: “Q. Do you know Mr. Wommer, Charles Wommer? A. Yes, sir. Q. Did he work there at the same time you did? A. Yes, sir. ' Q. State how he worked there at that time, if you know, at the time you worked there. What was his business? A. He was running a squeezer and making boxes. Q. Did he have a regular job at that, or how would that be done? A. If he did not. have any work there, he would go around in other parts ox the mill and do work. Q. That is,- Mr. Charles Wommer,? A. Yes, sir. Q. What other work would he do when he did not have work there? A. Run a saw and work in the finishing gang. Q. Under whose control was Mr. Charles Wommer? A. Under Mr. Palmer. Q, Under whose control were all the men in the room where Charles Wommer worked? A, I don’t know. I guess Mr. Palmer was., Q. Was he the superintendent there? A. Yes, sir. Q. I will get you to state, when m"en were needed on the squeezing machine, if they would be gotten out of other parts of the factory, or boys. A. Yes, sir. Q. When this squeezing machine, would stop running, what became of the boys who were working on it? A. They were put around in other parts of the factory. ”
The proof for the defendant was, in substance, as follows: “Charles Wommer was paid so much a thousand, hired by the piece, but we often worked him the other way. Por instance, we would get an
It was also shown that .Bell & Coggeshall had an insurance policy insuring them against loss by reason of injuries to their employes, and that it reported the plaintiff’s injury to the insurance company as an injury of one of its employes^ It was futher shown that the company discharged Wommer, and that he was subject to the orders of his superior, both as to what he should do and Roy he should do it.
An “independent contractor” is one who is independent of his employer in the doing of his work, and may work when and how he prefers. A “servant” is one who is employed by another and is subject to the control of his employer: In 1 Thompson on Negligence, Secs. 579 and 629, the rule is thus stated: “The right to control the conduct of another implies the power to discharge him M>m the service or employment for disobedience; and, accordingly, the power to discharge has been regarded as the test by yhich. to determine whether the relation of master and servant exists.” 1 Thompson on Negligence, See. 579, “In determining whether the relation is that- of master and servant or that of proprietor^ and independent contractor, the courts have sometimes taken into consideration the manner of payment;
In Singer Manufacturing Company v. Rahn, 132 U. S. 518, 10 Sup. Ct. 175, 33 L. Ed. 440, the United States Supreme Court said: “And the relation of master and servant exists whenever the employer retains the right to decide the manner in which the business shall be done as well as the result to be accomplished, or, .in other words,' not- .only what shall be done, but how it shall be done.” In Bracket v. Lubke, 4 Allen (Mass.) 138, 81 Am. Dec. 694, the Supreme Court of Massachusetts, after showing that, where.' the power* of directing and'controlling the work is parted with by "the employer, 'the relation of master and servant, does not exist, .said: “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.” The subject was fully, examined by the. Supreme Court Of West Virginia in Knicely v. West Virginia, etc., R. R. Co., 61 S. E. 811; 17 L. R. A. (N. S.) 370. In that case the person who' was claimed to bé an' independent contractor was employed to unload lumber from'.cars
We therefore conclude that Wopimer was not an independent contractor, but a servant of the Bell & Coggeshall Company, and that it was liable to the plaintiff for his negligence, if he was negligent. The defendant introduced much proof on the trial tending to show that the boy was not hurt as he testified, and that his injury was due to his own fault; but these matters are for the jury under proper instructions.
Judgment reversed, and cause remanded for a new trial.