McCall v. Pacific Mail Steamship Co.

HENSHAW, J. The Pacific Mail Steamship Company and Henry Bingham had contracted, the latter to load and discharge the cargoes of the company’s ships, the former to furnish the power and appliances necessary for the work. Pursuant to their contract, Bingham was loading flour on one of the company’s vessels, when a sling in which the flour was hoisted on to and lowered into the ship gave way, and plaintiff, who was stowing cargo in the hold, was severely injured by falling sacks. Plaintiff was a stevedore in the employ of Bingham. He sued Bingham and the company jointly, and obtained a judgment against both. They prosecute separate appeals from the judgment, and from the order denying a new trial.

In accordance with the contract the steamship company had furnished Bingham’s employees (Bingham not being personally present) with six slings to be used in hoisting the cargo. Upon receiving the slings Bingham’s men, according to their habit, examined them, and, rejecting two as defective, accepted four as fit for use. It was one of these four slings so accepted, which, breaking, caused plaintiff’s injuries. The cause of the break was-a latent defect in the rope attached to the sling. This rope, while sound to superficial observation, was for a foot or more of its length affected by a dry rot, which greatly impaired its-strength. Bingham had absolute control over his employees and over the conduct of the work.

It is contended on behalf of the appellant, the Pacific Mail Steamship Company, that these facts exonerate it from liability to the plaintiff in this action; that, even if it failed to exercise-the due amount of care in the selection and furnishing of appliances, it was a breach only of its contract with Bingham;, that there was no contractual privity between it and this plaintiff, and no duty owing by it to plaintiff, since between-it and plaintiff the relation of employer and employee did not exist. But the rule is too firmly settled to be open [44]to successful attack, that where one agrees to furnish to a contractor material or appliances which he is to use in the performance of his task the principal is liable to the servants •and agents of the contractor for injuries which may result to them from his negligence or inadequate performance of his contract in this regard. The liability is not based upon the relationship of employer and employee, but it is considered by some courts that the contract is made with the contractor for the benefit of his employees, who have, therefore, their right to a recovery for any breach of it which results in their injury. By other courts the contractor is considered to be the dependent -agent of his employer in these respects, and the doctrine of respondeat superior is brought into application. By still others -it is placed upon the ground of the failure of the principal to exercise the ordinary care which is due to everybody, without ¡regard to contract, under the principles announced in sections 1708, 1714 and 3281 of the Civil Code, and this seems to be the true reason for the rule. But, however that may be, the principie itself is settled beyond the possibility of successful controversy. Mechem on Agency, section 666, thus declares the doctrine: “If the principal was by the terms of the contract 'under obligations to the contractor to furnish the necessary machinery or appliances, or to supply a portion of the labor, he would he liable to the servant or agent of the contractor for ;an injury sustained by reason of his neglect to use due and reasonable care in-selecting and supplying the proper machinery or appliances.” In further support of the principle may he cited the cases of Mulchey v. Religious Soc., 125 Mass. 487; Lee v. Southern Pac. R. R. Co., 116 Cal. 97; McKenna v. The Carolina, 30 Fed. Rep. 199; Coghlan v. The Rheola, 19 Fed. Rep. 926; Hamilton v. The Wm. Bramfort, 48 Fed. Rep. 914; Roddy v. Missouri R. R. Co., 104 Mo. 234; Steel v. McNiel, 60 Fed. Rep. 105; Lake Superior Iron Co. v. Erickson, 39 Mich. 492; Kelley v. Howell, 41 Ohio St. 438; Coughtry v. Globe Co., 56 N. Y. 124.