295 Mass. 51 | Mass. | 1936
These two actions of tort were tried together. One of them was brought by Charles E. Parker, the other by Raymond F. Irwin, administrator of the estate of James H. Irwin. They arose out of the breaking of a ladder used as the “bed” of a staging upon which Parker and the intestate Irwin were working, painting the defendant’s house. Both fell when the ladder broke and were injured. Irwin died about two weeks after the accident.
The declaration in the Parker case is in one count at common law for negligence of the defendant in furnishing a defective staging.
The declaration in the Irwin case is in four counts: (1) a count at common law for negligence of the defendant in furnishing a defective staging, (2) a count at common law under an alleged special contract to furnish a staging and for negligence in furnishing a defective staging, (3) a count under the employers’ liability act for personal injury resulting in the death of the intestate caused by reason of a “defect in the ways, works, machinery or equipment connected with and used in the painting business of defendant” and (4) a count under the employers’ liability act for conscious suffering of the intestate resulting from such personal injury. See G. L. (Ter. Ed.) c. 153, § 1; c. 229, §§ 4, 7.
The judge, in each case, being of opinion that there was no evidence of negligence of the defendant, directed a verdict for him and reported the case upon a stipulation that if the verdict was directed rightly judgment should be entered thereon, but if not, judgment in an agreed amount should be entered for the plaintiff.
The evidence in its aspect most favorable to the plain
1. The verdict was directed rightly for the defendant in the Parker case. The plaintiff in this case contends that he was a servant or employee of the defendant and not an
2. The verdict was directed rightly for the defendant in the Irwin case. The evidence warranted no finding more favorable to the plaintiff than that his intestate was hired by the defendant to help Parker, an independent contractor, to do work which Parker had agreed to do and which was under his control, without control or direction in details by the defendant. There was no evidence that the defendant by his agreement with Irwin retained any right to direct or control him while he was helping Parker or in fact directed or controlled him •— beyond pointing out to him the house which was to be painted. It could not have been found that Irwin in helping Parker was the servant or employee of the defendant. So far as appears Irwin, though paid by the defendant, was hired by him to be the servant or employee of Parker, accepted this relationship and took his orders from Parker. See Delory v. Blodgett, 185 Mass. 126; Munsie v. Springfield Breweries Co. 200 Mass. 79, 82; Scribner’s Case, 231 Mass. 132, 134. In these circumstances the defendant would not be liable for an injury sustained by the intestate Irwin caused by the negligence of Parker, an independent contractor, arising either from the use by him of defective instrumentalities or the manner of using them (Harkins v. Standard Sugar Refinery, 122 Mass. 400, 403-404, Devlin v. Newfell, 275 Mass. 279, 282) in the absence, as here, of negligence on the part of the defendant in selecting such independent contractor. No ground of liability based on the nature of the work to be performed is shown. See Pickett v. Waldorf System, Inc. 241 Mass. 569, 570; Herrick v. Springfield, 288 Mass. 212, 216-217. Furthermore, in the absence of the relation of master and servant between the intestate Irwin and the defendant there can be no recovery on the counts under the employers’ liability act. G. L. (Ter. Ed.) c. 153; c. 229, §§ 4, 7-11. Dane v.
It follows that, in each case, under .the stipulation judgment must be entered for the defendant.
So ordered.