McKenna v. Snare & Triest Co.

Laughlin, J.: On the 11th day of August, 1908, Delancey street on both sides of its intersection with Eldridge street had been excavated for the- construction of the subway loop of the Williamsburg Bridge, and a temporary carriageway had been constructed over the excavation on timbers which also supported a gas main owned by the Consolidated Gas Company. Temporary manholes affording access to the gas main had been made at intervals and they were inclosed on the surface of the streets by rectangular fences formed by four upright pieces of timber to which two boards were nailed on each of the four sides. One of these- manholes was just easterly of the intersection of the said streets and another was a short distance westerly of said intersection. The plaintiff was in the employ of the Consolidated Gas Company and -it was his duty to inspect the main at these manholes for leaks. A truck hauling a steel girder which was to be used in the subway construction work broke through — 857 — the temporary carriageway at the intersection of said streets. One Peter Reeves and a gang of men were engaged on the subway construction work in the vicinity and were using, when occasion required it, a hoisting engine and block and pulley owned by the defendant. It is claimed by the plaintiff that these men were in the employ of the defendant, and the defendant contends that they were not in its employ, but were working for the Metropolitan Bridge and Construction Company, a New Jersey corporation. With a view to removing the obstruction and to moving the girder to a point where it was needed, Reeves directed that the truck be detached from the girder and drawn out leaving the girder on the surface of the temporary carriageway, and he then directed that it be moved to the westerly end of the crossing by the use of the engine, block and tackle. With a view to hauling the girder in the direction desired, a snatch-block with a pulley over which the rope connecting the drum of the engine and-the girder ran was attempted to be secured in place, by the use of an appliance known as a shackle, in the vicinity of the manhole located westerly of the crossing. The power was finally applied and after the-girder had been moved a few feet the shackle spread, letting the bolt which passed through the eyes of the shackle out at one end, and part of the tackle was thrown across the street to the east and came violently in contact with one of the boards inclosing the manhole opening near which the plaintiff was standing or walking, driving it against him and inflicting injuries to recover for which he brought this action. The jury were warranted in finding that the shackle spread owing to the fact that the bolt was not secured at all by a nut or otherwise, or that an attempt was made to secure it by screwing a nut on only part way, so that .when the strain came the threads of the bolt were stripped letting the nut off. The evidence was sufficient to require the submission to the jury of the question as to whether the plaintiff was free from contributory negligence, and whether there was negligence on the part of those doing the work, and was sufficient to sustain the verdict of' the jury on those issues. The defendant, however, denied liability for the acts from which the plaintiff suffered the injury, and contended that the men doing the — 858 — work were not in its employ, and that became a vital issue on the trial. The plaintiff called as a witness said Beeves, who testified that on ■ the day of the accident he was working in' Belancey street on the Subway between the Brooklyn and Williamsburg Bridges. He was then asked: “ In whose employ were you? ” This was*objected to. by counsel for the defendant on the ground that it was irrelevant, incompetent, immaterial, ■ and called for a conclusion of the witness, and that the question was one for the jury to determine: The objection was overruled and an exception duly taken. Beeves answered that he was in the employ of the defendant and that his position was that of foreman of steel erection; and under like objection and exception he was permitted to testify that he had worked for the defendant about four or five years in the capacity of foreman, and was foreman of this work at the time of the accident. He further testified that the work of moving the girder was being done by a gang of men under him and pursuant to his orders. It appeared that this foreman and the gang of men employed under him received their pay in envelopes upon which was printed “ Metropolitan Bridge & Construction Company,” and that they signed receipts for their pay.as having been received from said company. A letter produced by Beeves signed in the name of the defendant by W. G-. Triest,as vice-president, under date of May 11, 1909, addressed “ To Whom It May Concern, ” introduced in evidence, certifies that Beeves “ has been in' our employ for about four years as Foreman of Erection,” and in other respects it was a letter of recommendation. W. 0. Triest, who signed the letter, was called as a witness, and he testified that the defendant never employed Beeves, and that he stated that Beeves had been in defendant’s employ through inadvertence. Several of the men engaged on this work were called by the defendant, and testified that they were in the employ of the Metropolitan Bridge and Construction Company at the time of the accident, and among others, the head paymaster and timekeeper, who testified to the manner in which the employees were paid, and in which receipts from the employees were taken and preserved by him; that the money which he received to give out and-' which he did give out was in envelopes of the Metropolitan — 859 — Bridge and Construction Company, and that he never paid out any money in the name of the defendant. An agreement in writing, bearing date the 1st day of May, 1904, and duly acknowledged on the 17th day of November,-1906, between the defendant, a domestic corporation, party of the first part, and the Metropolitan Bridge* and Construction Company, a corporation organized under the laws of the State of New Jersey, as party of the second part, was introduced and read in evidence on the part of the defendant. By this agreement the party of the second part agreed “ to accept, enter upon, do and perform all necessary work, labor and service for the erection, construction and completion of the constructive part of each and every contract hereafter obtained by the party of the first part for masonry, iron, steel, composite or' construction work of any kind or nature, and to perform such construction or erection work in a good and workmanlike manner, to the satisfaction of the party of the first part, or of any architect specified in the first party’s contract, in strict accordance with the plans, specifications and details of said work, in accordance with all legal requirements and with the requirements of the various departments, municipal ’ bodies, architects, engineers or such person' or persons as may be in charge of and superintending the said work on the part of the person, persons or corporations contracting with said party of the first part, and in the prosecution of this agreement to supply all needful foremen, superintendents and workmen of adequate skill and ability and to accept and receive from said first party and be responsible for all material necessary for said construction or erection.” The party of the first part, being the defendant herein, obligated itself upon obtaining any contract for work of the description in that part of the contract already quoted, to “turn over the constructive or erective part of said contract to the party of the second part, and to pay the said party of the second part fo|: the said erective or constructive work, as the same progresses, the actual cost to said second party of the said work latpor and services (except services and labor of superintendents), said cost to be. arrived at by taking the aggregate weekly payrolls of the party of the second part and liquidating tljte same in weekly payments, and that in addition thereto the — 860 — said party of the first part agrees to furnish and loan to said' second party all necessary tools, tackle, derricks, ropes, ladders, scaffolding or appliances necessary for such erection or construction, and to pay to the party of the second part on the first day of each month hereafter the further and additional sum of 5% upon the total payrolls herein, excepting amounts paid for superintendents and paid during the preceding month, it being understood and agreed that said 6% is to be received by the party of the second part in full compensation for its services in the said work.” It was further agreed that the party of the second part, being the Metropolitan Bridge and Construction Company, was to hire and pay all employees on the work and- the salaries of the necessary superintendents, and to- immediately pay and discharge any mechanics’ liens filed against the work; and that the party of the first part, being the defendant herein, should furnish all materials and deliver the same to the party of the second part, and that the contract should continue for five years, but might be sooner terminated by either party on two weeks’notice in writing. The defendant also proved a'formal notice in writing given by it to the Metropolitan-Bridge and Construction Company under said agreement submitting plans,' specifications, details and drawings for the steel for its contract for this subway work, and calling upon the Metropolitan Bridge and Construction Company to do the work pursuant ’.'to said agreement; and the acknowledgment in writing from the Metropolitan Bridge and Construction Company of the receipt of said notification containing a promise on its part to proceed with the work. The secretary of the Metropolitan Bridge and Construction Company had formerly been a stenographer in the defendant’s employ, and the only office the Metropolitan Bridge and' Construction Company had was desk room in the office qf the defendant. Triest testified that neither he nor the defendant had anything to do with the incorporation of the Metrqpolitan Bridge and Construction Company so far as he knewj; but he was subsequently asked whether it was not a fact thsjit the Metropolitan Bridge and Construction Company “wals organized and fostered and got together by Snare & Triesit Company, ” and after an objection that the question wap — 861 — incompetent, irrelevant and immaterial had been overruled, and an exception taken, the witness declined to answer. Reeves on being recalled tetisfied that Triest visited the work sometimes once a week and somethnesrdnce in two weeks and at times made inquires and gave directions with respect thereto, and that in May, was notified that he would be -laid off work by one Hols^™,? a superintendent, under whom he was working, and he went directly to Triest’s office and said to him, “ I understand from your superintendent, Mr. Holstein, that I am to be laid off, and I came up to see if you would give me a recommendation,” whereupon he says Triest dictated and-subsequently signed the letter the material part of which has been stated. The. Appellate Division in the Second Department in McCherry v. Snare & Triest Co. (130 App. Div. 241; affd. without opinion, 198 N. Y. 532), by a divided, court held on facts-somewhat different from those now before the court with respect to the same or alike contract between defendant and the Metropolitan Bridge and Construction Company, that the question of which of the companies was doing the work was one of fact for the jury. Very likely that was also a question of fact in the case at bar; but it cannot be said that the contention of the defendant that it was not doing the work was made in bad faith, or that its claim was without merit. We are of opinion that the learned trial court erred in permitting the witness Reeves to testify that he was employed by defendant. The defendant being a corporation, he should have been permitted to state only the name of the individual who employed him and what position, if any, if he knew, such person held with defendant. It appearing that he was paid and receipted for his pay in the name of the Metropolitan Company his opinion that he was working for the defendant was not competent evidence for the consideration of the jury in deciding the question of fact as to who was his employer and responsible for his acts. The court instructed the jury that if the men engaged in this work were not in the employ of the defendant that would end the case, and that the defendant was not responsible for the negligence of the employees of another. The attention of the — 862 — jury was then drawn to the testimony of Reeves the foreman, and to these contracts, and the court said: “Now, of course this contract of itself does not determine; that is a mere of paper, probably at the time of the accident reposing in the pigeon hole of somebody’s safe down town. We are more interested in what actually took place on the job. Reeves says that he and the men moving the beam wereís the employ of the defendant. There is testimony on the other dde that you will recall, the time slips and the pay slips and other evidence to show in the light of the testimony of the witnesses called by the defendant that these men were being paid by the Metropolitan Bridge & Construction Co. This agreement, you will note, is an unusual agreement. Now, it is true that a corporation like Snare & Triest Co. may, if they take a contract to dig, this tunnel in Delancey street, or any other construction work, make a bona fide sub-contract with some other person to do á,ny part of the work, and in case the employees of that sub-contractor cause injury to another, the general contractor is hot responsible. In other words, a general contractor may relieve himself of responsibility by making a contract with some inde-: pendent contractor, who undertakes to do a certain part of the, work. And if the men that sub-contractor employs cause injury to some passer-by or some member of the public the general contractor is not responsible; the sub-contractor himself is responsible. Now, that is well recognized in law; but in order that that principle of law may apply, it must be a bona fide contractor; and the contention of the defendant (sic) here is that there- was no such bóna fide sub-contract let. As a matter of fact, the work,, to all intents and purposes, was being done by Snare & Triest Co., through certain instrumentalities and agencies working under their direction and for their benefit. Now, this is evidence that you may consider in connection with all the evidence in the case; the testimony as to what actually took place on the job, who paid the men, who directed the men so far as appears in the testimony, and say whether or not these men were actually, from a common sense point of view, actually working for Snare & Triest Co., instead of for the Metropolitan Bridge & Construction Co., in such a sense as would relieve the Snare. & Triest Co. from respon — 863 — sibility for accidents caused by the men working upon the job. Of course, if you find that the Metropolitan Bridge & Construction Co. was doing that work, that Beeves worked for it, and that these other men worked for it and not for the Snare & Triest Co. at all; that there existed here a bona fide independent sub-contract under which this work was being done, why, of course, then your verdict will be for the defendant, because this defendant can be liable only in case you. find that these men were in its employ to all intents and purposes. If you find on the other hand that they were actually and as a matter of fact in the employ of Snare & Triest Co., then you come to the question of damages.” At the close of the charge the defendant duly excepted to the instruction of the court to the effect that Beeves was in charge of the work of moving- the girder, whereupon the court remarked: “I did not mean to say that he was. I merely meant to call the jury’s attention to the fact that he swore he was. The credibility of the witnesses is for the jury.” Counsel for the defendant excepted to this modification, and also to that part of the charge wherein the court referred to the contract as a mere piece of paper, and requested the court to instruct the jury that the contract expressed the contractual relations between the parties, to which the court replied: “So charged. When I say it is a piece of paper, I mean, of course, merely that that is all any contract is; that is the expression of the contract in writing; that the actual manner in which the work was done supersedes the written language of the paper.” Counsel for the defendant excepted to this modification, and also to the charge “that the contract is a peculiar contract,” to which the court said: .“I didn’t mean that it is a peculiar contract; it is an unusual contract. I ask the jury particularly to read the contract, to take it with them into the jury room, and read it over very carefully.” Counsel for the defendant also excepted to the charge that it was for the jury to determine whether the Metropolitan Bridge and Construction Company was doing the work through the instrumentality of the defendant or its agents, and" thereupon specifically called the court’s attention to the part of the — 864 — charge to which his exception was directed by saying that it related to that part of the charge wherein the court left it to. the jury to determine in connection with the bonafides .oi the contract and of the corporation whether the Metropolitan Bridge and Construction Company was not “working through the instrumentality of the Snare & Triest Co., and not for themselves.” Counsel in taking this, exception was in error with respect to what the court had said to the jury, for in the part of the charge to which the exception relates the court had submitted it to the jury to determine, not whether the Metropolitan Bridge and Construction Company was doing the work through the instrumentality of the defendant, but whether the defendant was doing it through the instrumentality of the Metropolitan Company. ■ We are of opinion that the jury were permitted under the charge of the learned trial court to give too great importance to the question as to. whether or not the contract between the defendant and the Metropolitan Company was made in good faith. The issue to be determined by the jury was .not whether the defendant was instrumental in having the Metropolitan Bridge and Construction Company incorporated, or what its motive or purpose was in sub-letting part of the work to that company, or whether the contract between them was made in good faith. The Metropolitan Bridge and Construction Company, in so far as appears by this record, was a duly organized corporation, and it was perfectly competent for the defendant to sub-let the whole or part of the work to it. The important question to be determined by the jury was, whose servants were these men who were guilty of the acts of negligence which resulted in the injuries to the plaintiff. It was quite Immaterial whether the Metropolitan Bridge and Construction Company was organized in good or bad faith, or whether the contract between the defendant and it was made in good or bad faith. It was competent for the Metropolitan Bridge and Construction Company to employ these men to do this work, and if it did employ them and was-paying them for their services the defendant is not responsible for their acts. As has been seen, the court instructed the jury that, “As a matter of fact, the work, to all intents and purposes, was being — 865 — done by Snare & Triest Co., through certain instrumentalities and agencies working under their direction and for their benefit,” and also left it to the jury to find whether or not the men who were guilty of the acts of negligence were actually working for the defendant “in such a sense as would relieve the Snare & Triest Co. from responsibility for accidents caused by the men working upon the job.” Considering the charge as a whole, the jury may very well have found that the men were actually employed by the Metropolitan Bridge and Construction Company, but that the defendant sub-let the work with a view, to avoiding liability to the employees or for their acts, and that since the defendant advanced the amount of the payroll weekly it should be held responsible for the acts of the men on the theory that they were in a sense in its employ. The men were not in the employ of both companies, and yet the jury under these instructions may well have found for plaintiff on the theory that they were employed by both. It follows, therefore, that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event. Ingraham, P. J., and Scott, J., concurred; McLaughlin and Miller, JJ., dissented.