Channon v. Sanford Co.

Tobrange, J. The decisive question in this case is .whether, upon the facts found, it was the duty of the defendant to provide the staging upon which the plaintiff was to do his work in the church building. If it was, there is no error; if it was not, there is. In the discussion of this question it will be assumed that the plaintiff, while doing the work in the church, was and remained, as the finding shows, the servant of the defendant; and further, that the staging furnished to the plaintiff was, as claimed by him, a “ place ” for the servant to work in, rather than a mere tool or appliance, within the meaning of the rule hereinafter referred to. The general rule requiring the master to use reasonable care to provide a reasonably safe place for the servant to work in, and performance of that requirement as the full measure of his duty in this respect, is well settled in this State. Wilson v. Willimantic Linen Co., 50 Conn. 433; McElligott v. Randolph, 61 id. 157. This was the rule applied in this case in the trial court, and the important question is .whether it was applicable under the facts found. The first part of the rule above referred to, is usually stated as follows : “It is the master’s duty to exercise reasonable care to provide for his servant a reasonably safe [579] place in which to work.” McElligott v. Randolph, 61 Conn. 157, 161. This, as a general statement of the general rule applicable in most of the cases of this kind, is accurate enough. It is sufficiently accurate as applied to cases like the two hereinbefore cited from our own reports. As thus stated, however, the duty, and the liability arising from a negligent failure to perform it, would appear to rest upon the master at all times and under all circumstances, whenever and wherever his servants may be at work for him; but this clearly is not so. There are cases where the servant may be at work for the master, and yet no such duty or liability rests upon the master. In cases where the servant does Ms work upon stagmg, scaffolding, or similar structures, it frequently happens that it is the duty of the servant, by force of his employment, to make such structure reasonably safe for his own use. In such cases the general rule does not apply in favor of such servant. Shearman & Redfield on Neg. (5th ed.) § 195, and cases cited; McGorty v. Southern New Eng. Tel. Co., 69 Conn. 635. Then, again, this general rule is not ordmarily applicable to cases where the master neither has nor assumes possession, •use, or control, legal or actual, of the premises or “place ” where the servant may be at work. The general rule is based upon such possession, use and control by the master of the premises where he puts his servants at work for Mm; and, speaking generally, Ms duty to use due care to make and keep such place reasonably safe flows from and is measured by such possession, use and control. Just as the master’s liability for the acts of his servants while engaged in his business is based upon his power to control them, so Ms duty to provide reasonably safe premises is founded essentially upon Ms occupation, use and control of such premises. This bemg the reason of the rule, when the reason does not exist the rule is Mapplicable. If an employer sends Ms servant to a distant place by rail, to do a piece of work on the premises of B, it would hardly be contended, in the absence of a special agreement to that effect, that the master would be responsible to the servant [580] for the negligence of the transportation company in failing to carry the servant safely, or for the negligence of B in failing to keep his premises in a reasonably safe condition. In the case supposed, the servant, both while being carried and while at work on B’s premises, is at work for his master, and the railroad car and the premises of B are places where he is directed to and does perform work for his master; and yet the master, as master merely, would be under no duty to use reasonable care to make such places reasonably safe. The law in such cases reads no such duty into the contract of hiring. If the master assumes possession and control of the premises of B with his consent, even temporarily, for the purpose of doing the work there, the result might be different. Such a case might be, under certain circumstances, within the reason of the rule. Ordinarily, however, we think the law reads such a duty on the part of the master towards the servant into the contract of hiring, only with reference to premises used, occupied or controlled by the master. If this were not so the duty and liability of the master would be very burdensome. He would be, in effect, frequently made responsible for the negligence of third parties with reference to premises he had never seen, and about the condition of which he knew and perhaps could know nothing. The merchant would, in effect, be liable to his clerk for the negligence of the customer with respect to the safety of the premises upon which the clerk goes to deliver his master’s goods, and the master-plumber or carpenter to his workman for the negligence of the householder upon whose premises he sends the workman simply to make some slight repairs. In all such cases the servant, if injured without fault on his part, by the negligent failure of the owner or occupier of the premises to keep them in a reasonably safe condition, has his remedy against such owner or ocóupier and, in the absence of some agreement to that effect, has none against the master. We think the case at bar, upon a proper construction of the finding, falls within tins class of cases. Unless it was [581] the duty of the defendant to furnish the staging in question, the judgment in this case cannot be supported. Such a duty could rest upon the defendant only upon two grounds: (1) because it had specially assumed it in this case; or (2) because the law imposed it upon the defendant as master. We think the facts found fail to show either that the defendant specially assumed, or that the law imposed, any such duty. If the defendant specially assumed any such duty, that was a fact to be found by the trial court, either expressly or by necessary implication. It is not found expressly, nor by necessary implication. The question, on this part of the case, is, whether if no such duty rested upon the defendant by law, the facts found warrant the conclusion, as matter of law, that it assumed such a duty. The strongest thing in the finding in favor of such a conclusion is the fact that the defendant assured the plaintiff that the staging would be entirely safe; but this fact, taken either alone or with the other facts found, clearly does not warrant any such conclusion as matter of law. The assurance was given at the very time that the defendant told the plaintiff about the strong staging that had been already erected and in use in the building, and at the very time when plaintiff was informed that Caulfield and not the defendant was to “ see ” to the staging. What the defendant said to the plaintiff, as detailed in the finding, falls far short of an agreement to be responsible for the staging already built, or to be built, by Caulfield or his servants. The most that can be said about the finding upon this point is that it contains evidential facts tending to prove such an agreement; but such facts do not, as matter of law, constitute such an agreement. Taking the finding as a whole, it is quite clear that it does not show that the defendant specially assumed the duty in question. In justice to the trial court we ought to say that its decision is not based upon the ground that the defendant specially assumed any such duty, but upon the ground that such duty was imposed by law upon the defendant as master under the circumstances; and the remaining question is whether this is so. [582] The facts clearly show that Caulfield was before and at the time the plaintiff went to work in the building, in the' exclusive occupation and control of the building, premises, and staging, and so remained till after the plaintiff’s injury. The building was in New Britain; the defendant’s place of business was in Hartford, where plaintiff worked for the defendant. The agreement between the defendant and Caulfield was, in effect, that the defendant should furnish a skilled workman to place the ornament, and Caulfield would furnish staging and all else. The plaintiff was not informed of the details of this agreement, but this is of no importance on this part of the case. It was important as evidence bearing upon the question whether the defendant specially assumed the duty to furnish staging, but not upon the question whether the law imposed the duty upon the defendant as master. The defendant sent the plaintiff from Hartford to this church building in New Britain, to perform this work. The defendant had never been in possession or control of the premises, even temporarily, up to the time the plaintiff went there. It never was, upon the facts found, in possession or control of these premises at all, in any such sense as to make it responsible to its servant for their safety. The case then, as disclosed by the record, is simply the ordinary one where a master, without more, sends his servant to work upon the premises of B at B’s request. In such case, in the absence of agreement to that effect, the law does not impose on the master the duty of caring for the safety of the servant upon B’s premises. There is error in the judgment complained of and the. cause is remanded for the assessment of nominal damages. In this opinion the other judges concurred, except Andrews, C. J., who dissented.