Wiswall v. . Brinson

Lead Opinion

Pearson, J.

The question is one of serious difficulty and has been held under advisement. The cases upon the subject are numerous. Many of them turn upon very nice distinctions ; and in some, the Judges were not able to agree. After the most anxious consideration, I have come to the conclusion, that the action can be maintained, ^both upon authority and principle. -

“One should use his own, so as not to injure another;'’ “That, which you do by another, you do yourself,” — are two maxims, from which results the general rule, when one procures work to be done, if a' third person is injured by the negligence or want of skill of the persons employed, the person, for whose benefit, and at whose instance the ^vvork is done, must make compensation. The party injured may sue the person, whose negligence or want of skill was the immediate cause of the injury. So may the employer, if he is compelled to pay the damage. But, if that person is innocent, the loss must fall either upon the party injured, or upon the party, who set the work in motion and for whose benefit it was done. Can there be a doubt, upon which of the two it ought to fall? The rule is founded upon justice, and exceptions to it should be allowed with caution, and only to the extent called for by public convenience.

The rule is not confined to domestic servants, but has a more extended operation. All such as act for — do the work of — serve, another, are in contemplation of law his servants, and fall under the rule. The captain and crew of a vessel or steamboat, engineer and hands of a rail road, or of a factory, drivers of stages, cashier and ofii« cers of banks, the deputies and other officers of a sheriff, are familiar instances. It makes no difference, whether these servants are paid by the job, or by the year, or the day. A third person has no concern with the terms of their private agreement. The loss to him is the same, let the agreement be either way. Nor does it make any difference, whether the person, for whom the work is done, be present or absent: if he expects to be absent, the more care should be used in making the selection* Nor is any distinction taken, when the work is of such a nature, that the owner cannot be expected to do it himself and must’’ necessarily employ others to do it. In all these cases, the person, for whom the work is done, is liable, if a third person be injured, y, There is, however, an exception to the generality of the rule, made necessary by public convenience and general usage and when the reason of the rule does not so fully apply. The question is, whether this case is within the exception..

"When one enters a rail road car, the engineer and hands serve him — do work for him — carry him and his goods. But he is not liable for their negligence or want of skill. So far from it,, the company is liable to him. ^ This is an exception to the rule, for two reasons : he did not make the selection, and although in a large sense they are his servants, yet they are the servants of the company. It carries on a distinct, independent business, and is liable for their negligence or want of skill. The reason of the rule fails; and public convenience demands, that the party injured should be content with his remedy against the' company or the individual whose fault caused the injury.' If passengers were liable, no one would travel upon rail roads. This is the principle, upon which the exception is based. It extends to an infinite variety of cases. The one given is “ex grege” — it includes all who carry on independent trades or callings recognised as such by law or’ by common usage. If one sends his horse to a smith’s shop, and by negligence he is permitted to injure a third' person, the owner of the shop is liable, but the owner of the horse is not. So, if one sends to a person, whose' calling is to keep horses, carriages and drivers to hire, and a third person is injured by the negligence of the driver, viciousness of the horse, or insufficiency of the carriage, he must look to the person, who, in his calling, furnished the driver, horse, or carriage. The person who hired them did not have the selection ; and public convenience requires, that he shall not be vexed for the fault of another, although the work was done for his benefit, as there is anotheiv^o whom the party injured may have recourse. So; if ave'ssel takes in a pilot, not being compelled to do so, the owner is liable, but if a vessel is compelled to take in a pilot, the owner is not liable to a third person for his fault, because there is no power of selection, and the party injured has a sufficient remedy against the pilot. This exception, however, was not yielded without much opposition. In England, it was not quite settled until the statute George 4th, excepting ship owners from liability in such cases; and, in this State, in the case of Harvey v. Pike, N. C. Term Rep. 82, it was held, that the owner of a ship is liable upon the bill of lading to the shipper, whose goods are-damaged by the unskilfulness of the pilot. But it is left open, whether a ship owner be liable to third persons. This shows the caution and reluctance of the Courts in admitting exceptions toa rule, so obviously founded upon justice. Such is the rule, and such the exception as now settled, but the exception was not permitted to be as large, as I have laid it down until after many and severe struggles. One of the most memorable occurred in the case of Laugher v. Pointer, 5 B. & C. 547. The Judges of the King’s bench were equally divided. The case was then argued before the twelve Judges. They could not agree, and the judgment? was then delivered by the four Judges of the King’s bench. Littledale and Abbott, C. J., being with the defendant, IIolroyd and Bailey, with the plaintiff. The argument, as may well be supposed, was exhausted on both sides, and it was left as an unsettled question. The case was, the defendant, having a carriage in London, sent to a job-man, who kept horses, carriages and drivers to hire, in the usual way., for a pair of horses. The job-man sent the horses and a driver. The plaintiff was injured by the negligence of the driver, and the question was, whether the defendant was liable., Littledale held, that he was not, and argued, that the case fell under the exception to the general rule, because the defendant did not select the driver, and because the plaintiff had his remedy against the job man, “who carried on a separate, independent calling, recognised by common usage.” Holroyd and Bailey held, that the case fell under the general rule, that the defendant had made the selection ; for, he allowed the job-man, as his agent, to select the driver, which was the the same as if he had made the selection himself, and if the plaintiff had a remedy against the job-man, it was no reason why ho should not also have a remedy against the defendant, for whom the work was done, and let him look to the job man. They assume, that, if the job man had been the driver, instead of the person sent by him, the case would have been clear for the plaintiff; for, then, there would have been no other person to sue, save the person whose fault caused the injury, and the defendant, for whose benefit the work was done, and insist, that his sending a driver, instead of coming himself, made no difference. Abbott concludes the argument, contending, that the case was the same, as if the job man had also furnished the carriage, which would be the ordinary case of one, riding in a stage or hack. He insists, that the job man exercised a separate calling and was liable for the negligence of his servant, the driver; that he was as able to pay the damage and as easily found out as the hirer, and there was no reason, why the hirer should also be liable. Public convenience wras against it. He does not answer the supposed case, had the job man been the driver; and it is worthy of remark, that in all the cases where an exception is made, the agent was the servant of the person with whom the contract was made, and not that person himself; and there is no intimation, how the Judges thought that circumstance would alter the case. I do not lay stress upon it, as it does not seem to me t® make much difference, whether the person, who carries on a distinct trade, does the work himself or has it done by his servants. But in the next case, which will be referred to, which is the strongest on the side of the exception, and has been said, “to carry it to a great extent,” the decision is put upon the fact, that the work was done^ not by the person, with whom the contract was made, but by Ms servant.

Laugher v. Pointer, was followed by the case of Quarman v. Burnett, in the Court of Exchequer, 6 M. & W. 490. The facts were almost precisely the same ; and Parke. B. says, the Court is compelled to decide the question left unsettled in that case. The decision is for the defendant, concurring with the opinion of Littledalb and Abbott. He says, “no other person than the master can be liable, on the simple ground, that the servant is the servant of another and his act the act of another ; consequently, a third person, entering into a contract with the master, which does not raise the relation of master and servant at all, is not thereby rendered liable and concludes, that when the job man sends the driver, the .employer is not liable, for the driver is the servant of the job-man, not of the employer, and that the general rule is too broad, and the case fails within the exception. This case established the exception to this extent: — when the work is done by the servant of another, who exercises a distinct and independent calling, the laiteris liable for the fault of his servant, and not the person, for whom the work is done, because a contract with the master does not establish the relation of master and .servant between the employer and the servant of the contractor. For instance, a contract with the job-man does not make his servant the servant of the employer. A contract with a rail road company does not make the engineer and hands the servants of the traveller. They are selected and paid by the company and its liability for their acts is a sufficient security to third persons, without subjecting the passengers, which would be a great public inconvenience.

The next is the case of Repson v. Cebitt, 9 M. & W. 710. The owner of a house employed a builder to do-certain repairs. He made a sub-contract with a gas-fitter. The gas-fitter, or his servant, in the erection of the gas-fittings, caused mischief by neglect. It was held, that the owner of the house was liable, upon the authority of Burk v. Stinman, (which is cited below.) but that the builder was not liable, because the gas-fitter was carrying on an independent trade and was not the servant of the builder, but wrns doing the work of the owner of the house.

The next was the case ol Milligan v. Wedge, 12 A. &. E 737. A butcher, having bought a steer, employed a licensed drover in London to drive the animal to his slaughter pen. The drover sent his servant to do the work. Injury was done to the plaintiff by the negligence of the servant. Held, that the butcher was not liable j fo.r the servant was the servant of the driver, who carried on a separate calling recognised by law. The plaintiff’s remedy was against the drover.

Then came the case of Martin v. Tenpuly, 4 A. & E.. N. S. 45 E. C. L. R. 298, decided in 1843. The defendant owned two barges, which he wished to remove from one place to another on the river Thames. His foreman employed two freemen of the company of “Watermen,” &c , and paid them by the job. In moving the barges, injury was done to the plaintiff’s boat by their negligence. The defendant’s counsel admitted the general rule* but urged, that he came within the exception, established by Quarman v. Burnett, and Milligan v. Wedge; for, the freemen of the company of “Watermen,” &c., have a distinct calling recognised by law, and the defendant was obliged to employ a member of that company by statute, George 4, so his choice of selection was limited. And without reference to the statute, it was argued, that it was not a case of master and servant, but of an indepen• dent contract to do work within the principle of those two cases Judgment was given for the plaintiff, all of the Judges holding, that the general rule applied. Denman distinguished it from the case of Milligan v. Wedge, because the drover was pursuing a separate business, and his servant caused the injury. “In the present case, it was otherwise,” says his Lordship. He does not pursue the argument, but leaves it to be inferred, that his meaning was, the two freemen were the servants of the d'e fendant; for, if not, whose servants were they ? Patterson says, “the freemen were the servants of the defendant. In Quarman v. Burnett, it was held, that where a man hires another man’s servant, he does not become the servant of the person so hiring. That case certainly carried the exception a great way. But, then, the servant was ordinarily in the employment of one, who hired horses along with the driver, which distinguishes it from this case.” Coleridge put the case under the general rule , thinking clearly it did not come under the exception. If a man be employed by the job to move a barge from one place to another, and injury is done by his negligence, the owner of the barge is liable. I confess, I cannot distinguish that case from the present, where a man was employed by the job to move a house from one place to another. It cannot be said, that Gaskill was the servant of another, who was liable, which is the principle in the case of Quarman v. Burnett. Nor can it be said, that he was exercising a separate and independent calling, recognised by law or common usage — the principle of Milligan v. Wedge. The case does not state, that there is such a separate calling, as that of a house mover, and, if so, that Gaskill was of that trade.

Upon authority*, therefore, I think, the case is against the defendant, and it is also upon principle. Why take_) this case out of the general rule ? He selected his rnan; the work was done for his benefit; and he can be indemnified by the person he employed, unless he be insolvent; and if so, it.was his folly to employ an insolvent man, and the loss should not be shifted off upon an innocent third person. There is no principle of public convenience,, ■which calls for the exception. If, instead of employing Gaskill by the job, the defendant had given him f 10 to superintend: and had given him fifty hands to work ■under him, it must be admitted, the defendant would then have been liable. Does it make any difference to the plaintiff, how the defendant chose to make his bargain? Is the injury to him less ? Then, how can his right be affected by it ?

There is another class of cases, to which it is proper to refer. Not because I consider them directly in point, but because they show clearly within what narrow limits the exception is confined. In Burk v. Stinman, 1 B. and Pul. 404, the defendant, having purchased a house on the road side, contracted with a surveyor to put it in repair for a stated sum. The surveyor contracted with a carpenter to do the whole work. He made a contract with a bricklayer to do the brick work And the brick-layer contracted with a lime burner to furnish a quantity of lime, which was delivered by the servant of the latter, by laying it on the road near the house. The plaintiff ran on the lime and upset, and was much injured. Held, that the defendant was liable for the injury. The Court lays down the general rule and the exception, but this is made an exception to the exception, because the property of the defendant was fixed and permanent; and he was, therefore, liable for the acts of the servants of all such, as he employed to do work upon, near, or in respect to, the property, although the person contracted with carried on a distinct calling. In Laugher v. Pointer, Littledale takes a distinction between the owner of fixed and of moveable propert}^. This case has been followed by many others, both in England and the United States; and the exception to the exception against the owner of fixed property, is fully established.

In this case, the defendant was the owner of the lot, to which the house was to be removed. The work was centainly to be done “in respect to that property,” by putting a house on it, and the hole in the street was near the lot (150 yards.) It is not stated in Burk v. Stinman, how near the lime was laid to the defendant’s premises. I infer, that it was within a few yards, and am inclined to think, that the principle of that case is confined to acts done on the land, or so near to it, that the owner, if present, as he ought to be, must necessarily be aware of them. One hundred and fifty yards seems to be too far, unless the nature of the work makes a difference. Moving a house is a more serious job, and calls for more caution, than hauling a load of lime or timber. I prefer to put the case, not as coming within the exception to the exception, but as coming under the general rule — not being brought within the exception by any decided case in the demand of public convenience.

Nash, J. Concurred.

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Dissenting Opinion

Ruffin, C. J.,

dissentiente. I find it established as a , rule of law, that the possessor of real property is liable for any injury received by reason of a nuisance on or at•, his premises, whether the nuisance be caused by himself, j or his servants, or by persons contracting to do work for | him on the premises. The propriety of the rule is easily understood, in respect of the owner, and his own servants, in the ordinary sense of the term. In respect to contractors to make improvements, it is not so obvious. I must say, with Chief Justice Eyre, that I should have had great difficulty in discovering the principle, which creates a liability of the owner of property for the negligence of persons, who contract with him to do work on it by the job and not under his particular direction. But the principle is settled, and in the case of Burk v. Stinman, 1 Bos. & Pul. 405, it was put on the ground, that the owner of real property is bound not to suffer even contractors to do any thing on his premises, for his benefit, which may ■work a prejudice to other persons. Hence it was held, that, as laying materials in the street, which were to be used in building a house on the adjacent land of the defendant, would be a nuisance, if done by the defendant or by his family, which would render the owner responsible for any injury occasioned by it, so it would also, if done by one, who contracted for a certain sum to build the house out and out. Mr. Justice Rooke said, that one, who has work going on upon his own premises, must be civilly liable for the acts of those, whom he employs there; and it will be intended that he has a control over the persons who work on his premises, and, if he deprive himself of it, he cannot be permitted to screen* himself thereby from an action. It will be at once perceived, that the liability, thus stated, does not arise from considering the contractor as the servant of the owner ; for, if that had been the ground, it would have depended on the common maxim of réspondeat superior. But the Chief Justice said expressly, that the relation of master and servant, as commonly exemplified, was not sufficient; and then he adds, that a general proposition, that a person' shall be answerable for any injury,.which arises in carrying into execution that which he has employed another to do, seems to be too large and loose. Mr. Justice Heath, likewise, particularly repudiates the idea, that the liability of the land holder grew out of a relation of master and servant between himself and his builder. Hence the whole Court places his responsibility on the single ground, that every owner oí real estate is bound to prevent nuisances on his premises, which are created in the course of doing work there for him by any body or on any terms ; for he has no more right to allow others to erect nuisances on his premises than to do so himself. That is the doctrine of that case, which is the leading one on this subject. But it has been distinctly stated, and adopted by almost every eminent modern Judge in England. In Laugher v. Pointer, 5 Barn. & Cres. 547, Mr. Justice Littledale treats the liability of one for the acts of another, whom he hires to do a job, as peculiar to such work as is done on real propertju As to such property, he admits, that one in possession must have the property so managed as not to injure others, whether it be managed by his own immediate servants, or by contractors or their servants ; and he assigns the same reason, that the wrong is in the nature of a nuisance, for which the occupier ought to be liable, when occasioned by the acts of persons, whom he brings on the premises : he, too, excluding the idea, that the contractor, as such, is the servant of the proprietor of the house under repair or being built. And that learned Judge contra-distinguishes the doctrine as to personalty from that stated in respect to the realty in a most striking manner. He says, moveable property is sent out into the world by the owner, to bo conducted by other persons. The common intercourse of mankind does not make a man or his own servants always accompany his property of that kind, and he must in many cases confide the care of it toothers, who are not his servants, but whose employment it is to take care of it — as carriers, factors, ^nd the like. Chief Justice Abbott said also, that the owner of a mine or a house was liable for what was done by persons immediately or mediately employed by him in working on them, because the owner has the control and management of all that belongs to the mine or house, and therefore it was his fault not to exert his authority, so as to prevent a nuisance, to the injury of another. Baron Parke quoted those positions, almost literally, in delivering the opinion of the Court of Exchequer in Quarman v. Burnett, 6 M. & W. 499; and again in Rapson v. Corbett, 9 M. & W. 710, he states the doctrine thus: “that if a man has anything done on his own premises, he must take care to injure no man in the mode of conducting the work.” There are other cases to the same effect; but more need not be quoted to this point. Those cited sufficiently show the proposition before stated, that the owner of real estate is liable for all the nuisances erected on it, not only by one who stands towards him in the relation of a servant, but also by one in the relation of a contractor to do a job of work on the land.

But I deduce clearly from those cases, and venture to lay it down asa necessary part of this doctrine, that, if one contract with another to build him a house on his land, whatever is done in collecting materials, or hewing stone, or framing timber, or making any otherpreparations for the building by' the contractor, at a distance from the place, where the house is to be erected and not at all on the premises of him, for whom the work is to be done, the latter cannot be held liable for a nuisance caused by his builder at the distant point, at which he carried on his preparations. Before the things are carried to their destined spot —that is, while they are not “on the premises” — the proprietor of the land cannot be liable, within the principle of those decisions. It is only on his premises, that the owner has “that control and management,” by reason of which the law deems it his fault to allow of an injury lo any one there. Take the case of Burk v. Stinman, to exemplify the distinction. A quantity of material was to be brought by persons employed under a man, with whom the defendant bargained for the building out and out of a house by the road side, and it was laid in the road near the place and a carriage was upset by it and the persons hurt; and the owner of the 1 and was held liable upon the ground before stated, namely, that the damage arose from a nuisance created at his premises for his benefit. But suppose, that, instead of the materials being carried to the premises and laid there, the carters, in bringing them towards the place, had, a mile off. negligently driven against a passenger, or wilfully thrown down their loads in the road and a coach had run over the heap: it may, as it seems to me, be deemed certain, that neither of the Judges, whose opinions have been quoted, would have subjected the owner of the land, on which the house was to be built. I cannot perceive the slightest pretence on earth for his liability. One can be at one’s own house or place, so as to prevent or abate any nuisances there : and therefore the law may enjoin it on one to do so, upon the maxim, sic utere tuo, ut alienum non Icedas. But by no pos« sibility can one be at all those places, where all thé persons, whom one may be under the necessity of employing about personal matters, may happen from time to time to be, so as to correct their misdoings Indeed, the employer would have no authority over them ; and the law cannot intend, that he must go away from his own premises to look after people, who contracted to bring him the materials he wanted. Until they be placed on his premises, or at the place whence they are to be taken for application directly to the building, they are not the materials of the land owner nor to any purpose subpotestate ejus. If Burk v. Stinman had been that case, we may be at no loss to say, that the judgment would have been for the defendant. Now, the present case seems to be juft the one supposed. The defendant had a building two hundred yards off and contracted with another man fora round sum to remove it to the defendant’s lot — the contractor to be at all the expense, and to have the exclusive management of the job; and the contractor, having moved the house from the land, on which it formerly stood (which did not belong to the defendant) and got the house into the street, committed a nuisance by digging a hole in the street, at a distance of nearly two hundred yards from the defendant’s ground. That is the case, and the question is, whether the employer is liable for t7i«i nuisance ? I may be mistaken ; but I entertain a very ■decided opinion, that he ought not tobe. It is plain, that it is not within the class of cases of which I have been speaking ; for. the wrong was not done on the defendant’s premises, nor near them, nor in respect of them, but was done at a considerable distance, and about a purely personal chattel. Therefore Burk v. Stinman, and all its derivatives, are inapplicable here ; or, rather, upon their reasoning, they show negatively, but conclusively, that the defendant is not liable. But, furthermore, if the defendant was present, when the hole was dug in the street —as it seems he, probably, was — it can make no difference; for he had no authority over the contractor, nor powers® give a single order. In other words, the contractor was acting, independently, for himself, under an agreement to do the work, and not as the servant of the defendant.

That brings me to another ground, on which it is supposed a liability of the defendant may be raised ; which is, that the relation between those parties is that of master and servant. In the arguments at the bar the counsel confined their observations entirely to the point I have been considering, and did not suggest the other, of master and servant. Therefore I did not turn my attention to it until recently. But I confess my researches and reflections lead me to a very clear opinion on it also, in favor of the defendant. I admit, of course, the liability of a master for the injuries done by his servant in the cdurse of his employment. But two persons must first be master and servant, before there can be a responsibility on one for the acts or omissions of the other. The question is, what makes them so — what constitutes that relation. I own, it is new to me, that, in a legal sense, so as to create responsibilities of the one for the other, the procuring of work to be done for one by another creates that relation, so that, if, by the negligence or want of skill of the latter in doing the work, a third person is injured, then' the person, at whose instance the work is done, shall answer for the injury. My notion has been, that the point depended upon the manner, in which the workman was employed — whether, as the servant of the employer, or' under an independent contract, by which the parties remain in equuli jure. In other words, that the rule, that a man shall be liable for his own servant, applies only to a servant; and, therefore, the first thing, always, is to show, that the relation subsists. Now, what are the characteristics of that relation — how do we know, when two men are master and servant 1 I admit that the mode of compensation, merely, does not determine the question conclusively; for a servant may be paid by the year, month, day, or job; though the mode may help, with other things, to show how the parties themselves regard each other. But there is a certain method of distinguishing a servant, of any kind, from persons sui juris — which is, by knowing, whether the person employed is subject to the orders and control of the employer in the execution of the work he is to do, or not. If the employer has a right to have the work done as he pleases, can change the plans and periods of it from time to time, to suit his fancy or his other business — in fine, if the hired man works under the other — then one is master, and the other is servant; but, otherwise, not. Hence, officers of companies, hands on cars or ships, deputies, as well as menials and domestics, are properly and truly servants. They are under the direction of the superior, and therefore the superior answers for them. But those officers and hands, or any other carrier, whether a head or subordinate, are not the servants of one, whom or whose goods they carry'. "Why? Because they do their work, not under the control of the passenger or freighter, but they are guided by some other superior or go their own way. So it is, as between all other persons, who employ and are employed. In the cases hitherto cited that view is taken of this point. In Burk v. Stinman, Heath, J., admitted distinctly, that the persons, who hauled the lime, were not the defendant’s servants, although doing work for him on his premises ; but he said, the action did not depend on that relation, and the defendant was liable, though the others were not his servants. Why was he not their master ? Obviously, because they did not work under him. They were the servants of a contractor, who had undertaken to build the house. He was, therefore, not the servant of the defendant, and, of course, his servants were not; but they were the servants of their own master. It will be remembered, that in the passage already' quoted, Chief Justice Eyre expressly disclaimed the relation of master and servant, in its ordinary' acceptation, subsisting between any of those parties ; and that he most emphatically repudiated the notion, that the defendant was to be brought in under the “large and loose proposition,” that a man was to be answerable for every injury arising in carrying into execution that, which he has employed another to do. The observation naturally suggests itself here, that it is quite surprising the Court, in all those cases, should have been put to such difficulty to find the ground, on which the land owner was to be held liable for injuries sustained during the progress of the work on his premises from the acts of the contractor and job men, if they, the contractor and job men, were servants by force merely of their being job men and contractor, as is urged against the present defendant. Would those learned Judges have been apt to look over so good a ground, and so plain before them ? But they did more. They did not merely over look it; but they went further, and condemned and rejected it. But there is another case still stronger. In 1842, the case of Repson v. Cebitt, 9 M. & W. 710, was before the Court of Exchequer, in which the facts 'were, that a builder was employed to make alterations in a house, including gas-fixings, and he made a contract with a gas fitter to do that part of the work; and in the course of its execution the gas exploded through the gas-fitter’s negligence and hurt the plain-? tiff, who sued the head contractor. But it was held the action would not lie. Now there is no doubt, that the gas fitter and the owner of the premises were, each, liable ; the former, for his own default; and the latter, as owner of the premises where the injury was sustained, but not as master of the gas fitter ; for he was servant to no one, not even the builder who employed him. Why was he not servant to the builder, and the latter, accordingly, liable for his negligence 1 The judges state the reason distinctly, and truly, as far as I am capable of understanding it. Lord Abinger says, Cebitt was not liable, because Bland, the gas-fitter, “did not stand in the relation of servant to him, but was merely a sub contractorwhich plainly means, that the one was not servant to the other, because he was e.subcontractor. Baron Parke says, Bland was a subcontractor to do certain of the works, and therefore the relation of master and servant did not subsist between him and the defendant. Those positions are so explicit, and so tersely expressed as not to be susceptible of misapprehension ; and one would suppose, that no one( with them in his mind, could be at a loss to determine the relation between the parties here; in whose acts and dealings there is nothing equivocal, that can confound. It is a distinct job, undertaken by the contractor for his own profit,«and upon the strength of his own skill and ability, and at his own risk, without obliging or allowing to the defendant to interfere in the least with the operation. It is, therefore, absolutely, certain, that the defendant had no more authority, morally or legally, over the house-mover, than the latter had over him. They stood exactly upon a par to every intent, as contracting parties, and were not master and servant, unless in the sense that one is the servant of every body, for whom he does any work. There are, indeed, in the books some cases, which turn upon very nice points, as to the facts from which it was inferred, that the employer had or had not the control of a person actually working for him, so as to render the employed the other’s servants. Laugher v. Pointer was one of them. A gentleman hired of a stable-keeper a pair of horses to.draw his carriage for a day, and with the' horses the other sent his own driver, through whose negligence in driving the plaintiff was injured, and an .action was brought aginst the owner of the carriage. Upon the question, whether he was liable, the Court of King’s Bench was equally divided — as, indeed, were nearty all the Judges of England at one time. I confess, I should be at much loss at this day to say, on which side the better argument was. A gentleman cannot judge of strange horses, and the stable-man might not be willing to trust his horses in any hands but those of his own driver. whom he knew, and who knew the horses: and there* fore it would seem to be a case of separate undertaking by the stable-man, and, consequently, not subject to the control of the owner of the carriage. On the other hand, it is difficult to suppose, that a gentleman can intend thus to put himself upon the will and pleasure of a postillion, and there is a presumption, that he really exercises an authority as to the places and manner of driving. But, however doubtful may be the application of the rule to such a case, in order to know, whether those parties stood in the relation of master and servant, the rule itself stands out boldly and truly in all that the Judges say. Hence, Mr. Justice Littledale says, that the job-man was not a servant, because he was carrying on a distinct employment of his own, in which he let his man and horses both to the defendant: that the owner of the carriage, therefore, did not employ the driver and had no power to dismiss him or take the management of the horses from him. It is plain, that by the terms, “distinct employment,” the Judge did not rely upon the stable-keeper’s having a known calling, as a separate possession, as making a difference, except so far as it afforded evidence of the nature of his engagement with the defendant, namely, that he was dealing by way of independent contract, and not as putting himself a servant to every one to whom he let horses. There can be nothing in the calling of the two contracting parties being the same or different; and if the owner of the carriage had been, himself, a livery stableman, and yet chose to hire horses from another, their relation would be like that which, under similar circumstances, would subsist between men of other avocations. If that, however, were material, this ease, as it appears to me, would clearly fall within such a distinction ; for, I protest, that I should be as little competent to move a house as to build one ; and I believe that in large towns removing houses is one of the regular pursuits of life, requiring much skill and experience and strong and expensive apparatus to do it expeditiously, cheaply, and safely. I do not deem that of any importance, however; since I consider the reasons of both the Chief Justice and Mr. Justice Littledale in Laugher v. Pointer, to proceed distinctly upon the principle, that the defendant had barr gained with a job-man for the service by an independent agreement, and therefore the jobman’s servant was not the defendant’s servant — it being enough for one man to be the servant of one master. But the exemption of the defendant did not depend on that quaintness, that the driver was the livery-stable-keeper’s servant and therefore could not be the defendant’s. On the contrary, the driver was not the gentleman’s servant, because his master was not such servant; for, if the stable keeper, himself, had been driving, the defendant would have been as little liable, as his master, as is clear]/ laid down in the subsequent case of Quarman v. Burnett, as the unanimous opinion of the Court of_Exchequer after a vacation for the full consideration, which Lord Denman said it received. There it is admitted, that the hirer of job horses and a driver may-make himself responsible for the driver, by taking the management and order the driver to go in a particular manner. Yet it was distinctly stated, that he would not thus become liable, by virtue of the relation of master and servant. The Court say, first, that the coach-man. who did the injury, is liable ; and, so far from holding, that the stable-keeper would not be liable, if he had driven himself, or that the defendant in that case would have been, they say, secondly, that the stable keeper was liable, as he undoubtely stood in the relation of master to the wrongdoer, having selected him, and having power to control and remove him : And they say, thirdly, that the owner of the carriage was not liable, because he was not the master of the wrong-doer, nor of the wrong-doer’s master. Why was he not ? Because, say the Court further, he was “a third person entering into a contract with libe master” (the job man,) “which did not raise the relation of master and servant at all. To make such a person liable, recourse must be had to a different and more extended principle, namely, that a person is not only-liable for the acts of his own servants but for an injury by the act of another person in carrying into execution that, which that other person has contracted to do for his benefit — which is too large a position.” We may here take notice that the Court lays stress upon the circumstance that the defendant was a hirer by the job, not merely to show that the driver did not become his servant, but also that, for the same reason, the driver’s master did not become the defendant’s servant; for, the words are, that the contract did not raise the relation of master and servant at all. Of course, if the job man was liable for •the neglect of his servant, he would have been for his own, had he gone, just as the coachman, whom he sent, was said to be, that is, as the wrong doer. That case carried with it the whole Court of King’s Bench in the same year, in Milligan v. Wedge, 12 Adol. & El. 737. The case was, that there was a by law in London, that no one but a licensed driver should drive cattle from Smith-field through the City, and that a butcher bought a bullock and hired a drover to drive it to his slaughter pen without the city, and the drover put it in charge of his boy, and by negligent driving, after he had passed through the city, damage was done, and the butcher was sued, and judgment given for him. That is another plain adjudication upon the same principle, namely, that when a man hires another upon an independent contract to do work upon his own responsibility, and not under the orders of the employer, they do not become master and servant. It is in that sense, Lord Denman speaks of the drover, as exercising a distinct calling — as tending to show, that he was not to do the work under the butcher. For, he says, the mischief was done in the course, not of the butcher’s business, but the drover’s; meaning, their business by the contract according to its true construction, in reference to the skill of the several parties and the responsibility each was to have in performing the job. It could mean no more ; for he could not have reference to the authority conferred on the drover by his license, as that did not extend beyond London, and-they had got-out of the city before the damage was done, and were then but common job-men. Indeed, Mr. Justice Coueridge goes on the express ground, that, whether the drover or his boy was driving, the butcher could not be held liable, because he made a contract with the drover, that he should drive the bullock, and left it under his charge', and the relation, therefore, of master and servant did not exist between them. One could hardly expect to find language more apposite to any case-than that is to the present, in support of the positions 1 have thought it my duty to state.

There is still another case to be noticed, that of Martin v. Temperly, 4 Adolp. &, Ei N. S. 298. The defendant owned two barges which he worked on the Thames. By a statute, and a by-law of London, no one but freemen of the Watermen’s Company, or their apprentices, were al. lowed to navigate craft on the river, and there were about six thousand of them. A freeman of the Company was foreman to the defendant and let himself and an appren. lice by the vreek to the defendant, who paid the wages weekly. The case also states, that the foreman waspaV by the defendant by the job for what the apprentice did. The foreman then hired a freeman of the Company by the job and put his own apprentice aboard with him to navigate the barges on a particular day, and they did it so negligently as to injure a vessel belonging to the plaintiff, who sued the owner of the barges and recovered; and, as it seems to me, very properly. To say nothing of one of the hands on board being the apprentice of the defendant’s undoubted servant and being put on board upon a standing contract with the defendant, the liability of the defendant arose from the fact, that the boats wnre then in his service, actually employed in earning money for him. It was the regular course of employment of them and mode of engaging hands for them ; and it was nothing, whether the defendant paid the hands so much a week or so much each-job. of such or such a kind. For, there is no magic' in the term job, which will prevent a person from being liable for another whom he employs under him, and earning profits for him, being under his orders and rule. That is the very principle, for which I contend ; though l say, that if a man is hired, not to earn profit for another or to work under his government, but to do a particular piece of work for him according to his own skill, such a man is not the servant of the other. Now, Martin v. Temperly, so far from militating against those positions, goes explicitly to sustain them. Two objections were taken on the part of the defendant. One was, that he was obliged by act of parliament to employ the freemen, and, being imposed on him, he ought not to be responsible for them. The other was, that they were employed for the job, and therefore were not servants. Both were readily answered. The reply to the first was, that the act of parliament, even, called the Watermen the servants of their employers ; and that, it they were not, there would really be ino body responsible for barges on the river, as there could be no other hands on board but freemen — which could not have been intended. Besides the number was sufficiently great to" allow a proper selection. With that, however, we have no concern now. Our business is with the other point. And upon that Lord Dgktman remarks, that the distinction between Milligan v. Wedge, (in which he presided) and that case was, that in the former, the owner of the bullock had no longer any control over it, but that in the latter it was otherwise. And Mr. Justice Coleridge stated the men were the defendant’s servants, “because they were under his control; that is, in doing the work in the ordinary way.” As to the difference said to arise, where a workman is-paid so much for doing the whole job, he denied its application there, because “the defendant might either pay for a given time or given work, and the men here were as much under the defendant’s control, as a gentleman’s coachman is under that of his master’’ To that I can add nothing to make the case more applicable to the one in hand. It goes, with all the other cases, to establish, that, when a hireling is under the ordering of another, he is his servant; but when one person employs another at a fixed price to do a particular piece of work for him, not on his land, and over which the employer is to exercise no control, they stand in the relation of joint contractors, and not of master and servant. That appears in every' case to be the test — whether the agreement is such, that the one is to have the control over the other— the ordering and rule over him, or the contrary ; and it is an infallible test. If I employ a man to carry me or my goods I am not bound for his acts. If the article I engage him to carry be my carriage and he puts it on rail road cars or into his wagon, in order to transport it, he is my bailee and not my servant, and I am not liable for him. So, if, instead of doing that, he puts his horses to it and carries it on its own wheels, it can make no difference ; and he is still but my bailee. And so it was, when the defendant engaged the man to move his house, and he did it. How is it possible, that man can be called the defendant’s servant? He could not interfere in the work without breaking his contract. Indeed, he had no more authority in law over the house-mover than the plaintiffhimself had. Suppose that a person had employed hands to help him and had contracted debts for machinery with which to perform the operation, would the defendant have been liable for them, as debts contracted by his servant in the course of his employment ? If a person employ another to build him a house out and out, is the employer liable to pay for all the materials the other may buy for the work, because got by his servant for his use ultimately? Surely not, unless we are to resolve all engagements between man and man into such as create the relation of master and servant. It seems to me, in fine, that the defendant is clearly not liable. And I am not able to add any thing, which can make it plainer.

Per Curiam.

Judgment affirmed.

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Lead Opinion

The question is one of serious difficulty, and has been held under advisement. The cases upon the subject are numerous. Many of them turn upon very nice distinctions, and in some the judges were not able to agree. After the most anxious consideration, I have come to the conclusion that the action can be maintained, both upon authority and principle.

"One should use his own so as not to injure another," "that which you do by another, you do yourself," are two maxims from which results the general rule, when one procures work to be done, if a third person is injured by the negligence or want of skill of the persons employed, the person for whose benefit and at whose instance the work is done must make compensation. The party injured may sue the person whose negligence or want of skill was the immediate cause of the injury. So may the employer, if he is compelled to pay the damage. But if that person is innocent, the loss must fall either upon the party injured or upon the party who set the work in motion and for whose benefit it was done. Can there be a doubt upon which of the two it ought to fall? The rule is founded upon justice, and exceptions to it should be allowed with caution, and only to the extent called for by public convenience.

The rule is not confined to domestic servants, but has a more extended operation. All such as act for — do the work of — serve, another, are in contemplation of law his servants, and fall under the rule. The captain and crew of a vessel or steamboat, engineer and hands of a railroad or of a factory, drivers of stages, cashier and officers of banks, the deputies and other officers of a sheriff, are familiar instances. It makes no difference whether these servants are paid by the job, or by the year, or the (556) day. A third person has no concern with the terms of their private agreement. The loss to him is the same, let the agreement be either way. Nor does it make any difference whether the person for whom the work is done be present or absent: if he expects to be absent, the more care should be used in making the selection. Nor is any distinction taken when the work is of such a nature that the owner cannot be expected to do it himself, and must necessarily employ others to do it. In all these cases the person for whom the work is done is liable if a third person be injured. There is, however, an exception to the generality of the rule, made necessary by public convenience and general usage and when the reason of the rule does not so fully apply. The question is whether this case is within the exception.

When one enters a railroad car, the engineer and hands serve him — do work for him — carry him and his goods. But he is not liable for their negligence or want of skill. So far from it, the company is liable to him. This is an exception to the rule, for two reasons: he did not make the selection, and although in a large sense they are his servants, yet they are the servants of the company. It carries on a distinct, independent business, and is liable for their negligence or want of skill. The reason of the rule fails, and public convenience demands that the party injured should be content with his remedy against that the company or the individual whose fault caused the injury. If passengers were liable no one would travel upon railroads. This is the principle upon which the exception is based. It extends to an infinite variety of cases. The one given is "ex grege" — it includes all who carry on independent trades or callings recognized as such by law or by common usage. If one sends his horse to a smith's shop, and by negligence he is permitted to injure a third person, the owner of the shop is liable, but the owner of the horse is not. So, if one sends to a person whose calling is to keep horses, carriages and drivers to (557) hire, and a third person is injured by the negligence of the driver, viciousness of the horse, or insufficiency of the carriage, he must look to the person who, in his calling, furnished the driver, horse, or carriage. The person who hired them did not have the selection; and public convenience requires that he shall not be vexed for the fault of another, although the work was done for his benefit, as there is another to whom the party injured may have recourse. So, if a vessel takes in a pilot, not being compelled to do so, the owner is liable; but if a vessel is compelled to take in a pilot, the owner is not liable to a third person for his fault, because there is no power of selection, and the party injured has a sufficient remedy against the pilot. This exception, however, was not yielded without much opposition. In England it was not quite settled until the statute George IV., excepting ship-owners from liability in such cases; and in this State, in the case of Harvy v. Pike, 4 N.C. 519, it was held that the owner of a ship is liable upon the bill of lading to the shipper whose goods are damaged by the unskillfulness of the pilot. But it is left open whether a ship-owner be liable to third persons. This shows the caution and reluctance of the courts in admitting exceptions to a rule so obviously founded upon justice. Such is the rule, and such the exception as now settled; but the exception was not permitted to be as large as I have laid it down, until after many and severe struggles. One of the most memorable occurred in the case of Laugher v. Pointer, 5 B. and C., 547. The judges of the King's Bench were equally divided. The case was then argued before the twelve judges. They could not agree, and the judgment was then delivered by the four judges of the King's Bench, Littledale and Abbott, C. J., being with the defendant, Holroyd andBailey with the plaintiff. The argument, as may well be supposed, was exhausted on both sides, and it was left as an (558) unsettled question. The case was: The defendant, having a carriage in London, sent to a job man, who kept horses, carriages and drivers to hire, in the usual way, for a pair of horses. The job man sent the horses and a driver. The plaintiff was injured by the negligence of the driver, and the question was whether the defendant was liable. Littledale held that he was not, and argued that the case fell under the exception to the general rule, because the defendant did not select the driver and because the plaintiff had his remedy against the job man, "who carried on a separate, independent calling, recognized by common usage." Holroyd and Bailey held that the case fell under the general rule, that the defendant had made the selection, for he allowed the job man, as his agent, to select the driver, which was the same as if he had made the selection himself, and if the plaintiff had a remedy against the job man it was no reason why he should not also have a remedy against the defendant, for whom the work was done, and let him look to the job man. They assume that if the job man had been the driver, instead of the person sent by him, the case would have been clear for the plaintiff; for, then, there would have been no other person to sue save the person whose fault caused the injury, and the defendant, for whose benefit the work was done, and insist that his sending a driver, instead of coming himself, made no difference. Abbott concludes the argument, contending that the case was the same as if the job man had also furnished the carriage, which would be the ordinary case of one riding in a stage or hack. He insists that the job man exercised a separate calling and was liable for the negligence of his servant, the driver; that he was as able to pay the damage and as easily found out as the hirer, and there was no reason why the hirer should also be liable. Public convenience was against it. He does not answer the supposed case, had the job man (559) been the driver; and it is worthy of remark that in all the cases where an exception is made, the agent was the servant of the person with whom the contract was made, and not that person himself; and there is no intimation how the judges thought this circumstance would alter the case. I do not lay stress upon it, as it does not seem to me to make much difference whether the person who carries on a distinct trade does the work himself or has it done by his servants. But in the next case which will be referred to, which is the strongest on the side of the exception, and has been said "to carry it to a great extent," the decision is put upon the fact that the work was done, not by the person with whom the contract was made, but by his servant.

Laugher v. Pointer was followed by the case of Quarman v.Burnett, in the Court of Exchequer, 6 M. and W., 499. The facts were almost precisely the same; and Parke, P., says the Court is compelled to decide the question left unsettled in that case. The decision is for the defendant, concurring with the opinion of Littledale and Abbott. He says: "No other person than the master can be liable, on the simple ground that the servant is the servant of another and his act the act of another; consequently, a third person, entering into a contract with the master, which does not raise the relation of master and servant at all, is not thereby rendered liable"; and concludes that when the job man sends the driver, the employer is not liable, for the driver is the servant of the job man, not of the employer, and that the general rule is too broad, and the case falls within the exception. This case established the exception to this extent: When the work is done by the servant of another, who exercises a distinct and independent calling, the latter is liable for the fault of his servant, and not the person for whom the work is done, because a contract with the master does not establish the relation of master and servant between the employer and the servant of the contractor. For instance, a contract (560) with the job man does not make his servant the servant of the employer. A contract with a railroad company does not make the engineer and hands the servants of the traveler. They are selected and paid by the company, and its liability for their acts is a sufficient security to third persons, without subjecting them to the passengers, which would be a great public inconvenience.

The next is the case of Repson v. Cebitt, 9 M. and W., 710. The owner of a house employed a builder to do certain repairs. He made a subcontract with a gas-fitter. The gas-fitter, or his servant, in the erection of the gas-fittings, caused mischief by neglect. It was held that the owner of the house was liable, upon the authority of Burk v. Stinman (which is cited below), but that the builder was not liable, because the gas-fitter was carrying on an independent trade and was not the servant of the builder, but was doing the work of the owner of the house.

The next was the case of Milligan v. Wedge, 12 A. and E., 737. A butcher, having bought a steer, employed a licensed drover in London to drive the animal to his slaughter-pen. The drover sent his servant to do the work. Injury was done to the plaintiff by the negligence of the servant. Held, that the butcher was not liable, for the servant was the servant of the drover, who carried on a separate calling recognized by law. The plaintiff's remedy was against the drover.

Then came the case of Martin v. Tenpuly, 4 A. and E., N.S., 45 E. C. L., 298, decided in 1843. The defendant owned two barges, which he wished to remove from one place to another on the river Thames. His foreman employed two freemen of the company of "Watermen," etc., and paid them by the job. In moving the barges injury was done to the plaintiff's boat by their negligence. The defendant's counsel admitted the general rule, but urged that he came within the exception established (561) by Quarman v. Burnett and Milligan v. Wedge; for the freemen of the company of "Watermen," etc., have a distinct calling recognized by law, and the defendant was obliged to employ a member of that company by statute, George IV., so his choice of selection was limited. And without reference to the statute, it was argued that it was not a case of master and servant, but of anindependent contract to do work within the principle of those two cases. Judgment was given for the plaintiff, all of the judges holding that the general rule applied. Denman distinguished it from the case of Milligan v.Wedge, because the drover was pursuing a separate business, and his servant caused the injury. "In the present case it was otherwise," says his lordship. He does not pursue the argument, but leaves it to be inferred that his meaning was, the two freemen were the servants of the defendant; for, if not, whose servants were they? Patterson says: "The freemen were the servants of the defendant. In Quarman v. Burnett it was held that where a man hires another man's servant, he does not become the servant of the person so hiring. That case certainly carried the exception a great way. But, then, the servant was ordinarily in the employment of one who hired horses along with the driver, which distinguishes it from this case."Coleridge put the case under the general rule, thinking clearly it did not come under the exception. If a man be employed by the job to move a barge from one place to another, and injury is done by his negligence, the owner of the barge is liable. I confess I cannot distinguish that case from the present, where a man was employed by a job to move a house from one place to another. It cannot be said that Gaskill was the servant of another, who was liable, which is the principle in the case of Quarman v. Burnett. Nor can it be said that he was exercising a separate and independent calling, recognized by law or common usage — the principle of Milligan v. Wedge. The case does not state that there is such a separate calling as that of a house (562) mover, and if so, that Gaskill was of that trade.

Upon authority, therefore, I think the case is against the defendant, and it is also upon principle. Why take this case out of the general rule? He selected his man; the work was done for his benefit, and he can be indemnified by the person he employed, unless he be insolvent; and if so, it was his folly to employ an insolvent man, and the loss should not be shifted off upon an innocent third person. There is no principle of public convenience which calls for the exception. If, instead of employing Gaskill by the job, the defendant had given him $10 to superintend; and had given him fifty hands to work under him, it must be admitted the defendant would then have been liable. Does it make any difference to the plaintiff how the defendant chose to make his bargain? Is the injury to him less? Then, how can his right be affected by it?

There is another class of cases to which it is proper to refer, not because I consider them directly in point, but because they show clearly within what narrow limits the exception is confined. In Burk v. Stinman, 1 B. and Pul., 404, the defendant, having purchased a house on the roadside, contracted with a surveyor to put it in repair for a stated sum. The surveyor contracted with a carpenter to do the whole work. He made a contract with a bricklayer to do the brickwork. And the bricklayer contracted with a lime-burner to furnish a quantity of lime, which was delivered by the servant of the latter, by laying it on the road near the house. The plaintiff ran on the lime and upset, and was much injured. Held, that the defendant was liable for the injury. The Court lays down the general rule and the exception, but this is made an exception to the exception, because the property of the defendant was fixed and permanent; and he was, therefore, liable for the acts of the (563) servants of all such as he employed to do work upon,near or in respect to the property, although the person contracted with carried on a distinct calling. In Laugher v. Pointer, Littledale makes distinction between the owner of fixed and of movable property. This case has been followed by many others, both in England and the United States, and the exception to the exception against the owner of fixed property is fully established.

In this case the defendant was owner of the lot to which the house was to be removed. The work was certainly to be done "in respect to that property," by putting a house on it, and the hole in the street was near the lot (one hundred and fifty yards). It is not stated in Burk v. Stinman how near the lime was laid to the defendant's premises. I infer that it was within a few yards, and am inclined to think that the principle of that case is confined to acts done on the land, or so near toit that the owner, if present, as he ought to be, must necessarily be aware of them. One hundred and fifty yards seems to be too far, unless the nature of the work makes a difference. Moving a house is a more serious job and calls for more caution than hauling a load of lime or timber. I prefer to put the case, not as coming within the exception to the exception, but as coming under the general rule — not being brought within the exception by any decided case in the demand of public convenience.

Case Details

Case Name: Wiswall v. . Brinson

Court Name: Supreme Court of North Carolina

Date Published: Dec 5, 1849

Citation: 32 N.C. 554

Court Abbreviation: N.C.