Morgan v. Bowman

Leonard, Judge, delivered the opinion of the court. The questions discussed here, in the application of the rule, “ respondeat superior,” is, whether the defendant, the owner of the building for whom the work was being done, was respon-' sible as master ; or whether Greer, whom the defendant had employed to have the work done for him, was alone liable, on the ground that the relation of superior and subordinate, within the meaning of the rule, did not exist between them. It was admitted in the answer that the defendant was the owner of the building ; that he had directed the roof to be repaired, and had engaged a person to have the work done, and the proof was, that the defendant declined employing Greer to do it by the job, on account of the price he asked, and employed him — 546 — by the day, at an agreed price ; that Greer engaged the hands, &c., (the defendant paying them) and superintended the work as it was being done. Upon this proof, the court substantially instructed the jury, that if Greer was the person employed by the defendant, and by his employment was to superintend the work and be paid therefor by the day, the defendant was liable for the damages to the plaintiff that resulted from Greer’s negligence in the performance of the work. In this we concur, and of course the judgment must be affirmed. The maxim to which we have referred is well settled, but the difficulty is in applying it to the circumstances of each particular case ; in other words, in determining what facts establish the relation of superior and subordinate, so as to subject the parties to the rule. In the earlier English cases, (Bush v. Steinman, 1 Bos. & Pul. 404, and Sly v. Edgly, 6 Esp. 6,) it was declared, in respect to injuries occasioned by 'the negligent use of real property, that the owners were liable, whether the injury complained of were the acts of their own servants, or the acts of independent contractors, employed by the job. Accordingly, in Bush v. Steinman, where the owner of a house had employed a surveyor to do some work upon it, and there were several sub-contracts, and one of the workmen of the person last employed had put some lime in the road, in consequence of which the plaintiff’s carrriage was overturned, it was held that the owner of the house was liable, though the person who occasioned the injury was not his immediate servant. This liability was not supposed to arise out of the relation to which we have been referring, but proceeded, as is stated by Justice Little-dale, in his celebrated opinion in the case of Laugher v. Pointer, (5 Barn. & Ores. 560,) upon a supposed rule of law that “ in all cases where a man is in possession of fixed property, he must take care that the property is so used and managed that other persons are not injured, and that, whether his property be managed by his own immediate servants or by contractors or their servants, the injuries done upon land or buildings are in — 547 — the nature of nuisances, for which the occupier ought to he chargeable, when occasioned by any acts of persons whom he brings upon the premises. The use of the premises is confined by law to himself, and he should take care not to bring persons there who do mischief to others.” Subsequently, however, in Milligan v. Wedge, (12 Ad. & Ell. 737,) and in Allen v. Hayward, (7 Ad. & Ellis, N. S., 960,) this doctrine was questioned and finally overruled. In Reedie v. N. W. R. Co. (4 Exch. 250,) where the workmen of the contractors, to whom the Railway Company had let the work, reserving to themselves the power of dismissing any of the workmen for incompetency, in building a bridge, had caused the death of a person by negligently allowing a srone to fall, it was held, in an action against the company by the administrator, of the deceased, that they were not liable, the court declaring that, after full consideration, they had come to the conclusion that there was no distinction, in point of law, in cases like that then under consideration, between fixed property and ordinary movable chattels, unless, perhaps, in cases where the act complained of was such as to amount to a nuisance. ' The doctrine of the early English cases, although recognized in Massachusetts, in Inhabitants of Lowell v. Boston & Lowell R. R. Co. (23 Pick. 24,) and in Earle v. Hall, (2 Metc. 353,) has been questioned' in New York, (Fish v. Dodge, 4 Denio, 411,) and overruled in this state, in Barry v. City of St. Louis (17 Mo. 121.) It is not material in the present case, however, as the plaintiff’s right of recovery was not put in the court below, nor is it put here, upon any principle peculiar to real property, but was made to turn exclusively upon the question whether the relation of superior and subordinate subsisted between the defendant and Greer, or whether the putting the roof upon the house was done by him as job work, under a contract with the owner for that purpose; in other words, whether Greer was the defendant’s servant, in respect to this work, or an independent job contractor. It has been justly remarked that questions of liability, for the negligence of a servant, assumed one of two — 548 — forms — either, it being clear that the wrongdoer is somebody’s servant, the question is, whether he is the defendant’s ; or, the doubt is, whether he acted in his own behalf, being no one’s servant in the particular affair in which the negligence is shown, and these questions have been much discussed in the courts of justice; and although the present is not one of any great nicety, yet we may be allowed to refer for a moment to the leading cases upon the subject. In Laugher v. Pointer, to which we have already referred, where the owner of a coach had engaged of a livery stable keeper horses and a driver for the day, the question was, whether the livery stable keeper or the person who hired the horses and driver was responsible for an injury occasioned by the negligent conduct of the driver. The judges before whom the case was argued, gave separate and elaborate opinions, and exhausted — Judge Story tells us— the whole prior learning on the subject; but the point was left unsettled, as not only the court of queen’s bench, but the twelve judges differed upon it. Afterwards, in 1840, the question arose again in the case of Quarman v. Burnett, (6 M. & W. 499,) in the court of exchequer, where it was decided that the hirer was not liable ; and Parke, Baron, in delivering the opinion of the court, said: “Upon the principle that qui facit per alium, facit per se, the master is responsible for the acts of his servants, and that person is undoubtedly liable who stood in the relation of master to the wrongdoer — he who had selected him as his servant, from his knowledge or belief in his skill and care, and who could remove him for misconduct, and whose orders he was bound to receive and obey.” The word servant ordinarily indicates a person hired for wages, to work as the employer may direct, and the control which thus exists in the superior over the subordinate seems to be the principle referred to in the above extract, limiting and defining the cases in which the rule to which we? have been referring is applicable. And it is accordingly held, that where one employs a person carrying on a distinct trade or calling, to perform certain work for him, independent of the control of — 549 — the employer, the latter is not responsible for any injury caused by the negligence of that person or his workmen. There are many cases in the books in which this rule has been applied, and it is upon this principle that the defendant places his claim of irresponsibility for the damage here complained of. A butcher bought a bullock in Smithfield market, and employed a licensed drover to drive it home, and the driver employed a boy, through whose negligence the bullock injured the plaintiff’s property, and it was held that the butcher was not liable, as the drover exercised a distinct calling, and the boy, who did the mischief, was his servant, not the servant of the butcher. (Milligan v. Wedge, 12 A. & E. 737.) A builder was employed to make certain alterations in a club house, to do which he made a sub-contract with a gas-fitter, through the negligence of whom the gas exploded and injured the plaintiff, and the builder was excused from liability on the ground that the relation of master and servant did not exist between him and the party causing the injury. (Rapson v. Cubitt, 9 M. & W. 710.) A brig which was towed at the stern of a steamboat, employed in the business of towing vessels in the Mississippi, below New Orleans, was, by the negligence of the master and of the steamboat, over whom those in charge of the brig had no control, brought in collision with a schooner lying at anchor in the river, and the owners of the brig were held not liable for the damage occasioned by the collision, for the reason that the master and crew of the steamboat were not the servants of the owner of the brig — that they were not appointed by him, and did not receive their wages from him, and were not subject to his order or control. (Spraul v. Hemingway, 14 Pick. 71.) In all these cases, the employer had parted with the whole control over the work and the workmen ; but here, there is nothing of the kind. Greer was not employed as a job man to put the roof upon the house, the defendant divesting himself, by engagement, of all right of control; and there is no proof to that effect. He was employed as the defendant’s agent to have the work done by hands to be employed in — 550 — behalf of the defendant for that purpose, and to superintend the execution of it. His engagement was by the day, and he was paid accordingly. He was bound to receive his orders, in respect to the work, from the defendant, and to obey them, and was subject to be dismissed at any moment for misconduct. It is difficult to imagine a clearer case upon the proof of the relation of superior and subordinate, within the meaning of the maxim. Without, however, any reference to the sufficiency of the proof, which was a matter for the jury, it is sufficient, as a matter of law, to create that relation, that Greer, in the language of the instruction, was engaged to superintend for the defendant the putting on of the roof, and to be paid therefor by the day. Under these circumstances, he can not be allowed to escape from his own just responsibility to others, because he omitted, in point of fact, to exercise the control over his agent that he undoubtedly possessed. The latter, however, may be liable to the former for the damage that has resulted ; but that question can not be decided here. The judgment is affirmed.