Bennett v. Truebody

Sharpstein, J. In Milligan v. Wedge, 12 Adol. & E. 737, the distinction between the liability of the master of a mere servant and that of one who contracts with another, who is carrying on an open, distinct, and independent calling or employment, for the production of results, is clearly defined. In that case a butcher, who was the owner of a bullock, employed a drover to drive the animal from one specified place to another. Instead of driving it, the drover employed a boy to drive it. Through his carelessness in driving it a person was injured, and he brought [511]an action against the owner of the animal, to recover damages for the injury occasioned by the careless driving of the boy. The court held that the owner was not liable. Denman, C. J., said: “ Here it does not appear that the defendant attended the drover or his servant; and the mischief was done in the course, not of the butcher’s business, but of the drover’s.”

Coleridge, J., said: “ I make no distinction between the licensed drover and the boy ; suppose the drover to have committed the injury himself. The thing donéis the driving. The owner makes a contract with the drover that he shall drive the beast, and leaves it under his charge; and then the drover does the act. The relation of master and servant, therefore, does not exist between them.”

Williams, J., said : “ When the person who does the injury exercises an independent employment, the party employing him is clearly not liable.”

The distinction laid down in that case has since been generally recognized by the courts of this country, as the following cases show: DeForrest v. Wright, 2 Mich. 370; Wood v. Cobb, 13 Allen, 58; Kellogg v. Payne, 21 Iowa, 575; King v. New York Cent. & H. R. R. Co., 66 N. Y. 186; McCarthy v. Second Parish of Portland, 71 Me. 318; Harrison v. Collins, 86 Pa. St. 156 ; Linton v. Smith, 8 Gray, 147. As formulated in DeForrest v. Wright, supra, the rule is “ that where the person employed is in the exercise of an independent and distinct employment, and not under the immediate control or supervision of the employer, the latter is not responsible for the negligence or misdoings of the former.” Here the person employed to repair the water-pipe exercised an independent and distinct employment. He was an employer of men, to work under his direction and control. He directed two of those men to go and repair the pipe. They went, and while on the premises opened a trap-door which they neglected to guard, and the plaintiff fell through it, and was severely injured. The defendant was the owner of the premises, which, at the time, were occupied by a tenant for a restaurant.