Art. 7. Master and Servant. fact that one renders some service to another for compensation, express or implied, does not necessarily create the legal relation of master and servant. A servant is one who is employed to render personal service to his employer, otherwise than in the pursuit of an independent calling. Cited in Hallett v. N. Y. C., etc., R. R. Co., 167 N. Y. 543 (546). In order to establish the liability of one person, for injuries caused by the negligence of another, it is not enough to show that the latter was at the time acting in the employment of another to infer that such employment created a relation of master and servant. Lewis v. Long Island R. R. Co., 162 N. Y. 52 (66). He is deemed a master who has the supreme choice, control, and direction of the servant, and whose will the servant represents, not only in the ultimate result of his work, but in its details. While he is a contractor who renders service in the course of an independent occupation representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished. Stevens v. Armstrong & Squires, 6 N. Y. 435; Kelly v. Mayor, 11 N. Y. 432. One may be employed without being a servant and have an employer who is not a master. The relation exists where the employer selects the workman, may remove or discharge him for misconduct and may order not only what work shall be done but the mode and manner of performance. Butler v. Townsend, 126 N. Y. 105; King v. N. Y. C., etc., Co., 66 N. Y. 181. A person is not chargeable with the negligent acts of another in doing work upon his lands, unless he stands in the character of employer to the one guilty of negligence, or unless the work, as authorized by him, would necessarily produce the injuries complained of, or they are occasioned by the omission of some duty incumbent upon him. McCafferty v. S. D. & P. M. R. R. Co., 61 N. Y. 178, cited and followed in Sullivan v. Dunham, 161 N. Y. 290 (298). An interesting discussion is had in Howard v. Ludwick, 171 N. Y. 507, in prevailing opinion, Haight, J., and dissenting opinion, Parker, Ch. J., as to when the question should be sent to the jury whether the relation of master and servant exists in a given case. The majority opinion holds that a question of fact arose and was properly submitted to the jury. The dissenting Art. 7. Master and Servant. opinion, concurred in by Gray and O'Brien, JJ., holds that the matter should have been disposed of as question of law upon the authority of Murray v. Dwight, 161 N. Y. 301; Wyllie v. Palmer, 137 N. Y. 248; McInerney v. D. & H. C. Co., 151 N. Y. 411; Higgins v. W. U. Telegraph Co., 156 N. Y. 75. SUBDIVISION 3. Liability for Acts of Independent Contractor. An independent contractor is one who undertakes to produce a given result without being in any way controlled as to the method by which he attains that result. He is distinguished from a servant, who, on the other hand, is under the orders and control of his master in respect to the means and methods used to attain the end for which he is employed. Hale, 133. Fraser (on Torts, p. 30) defines the distinction between an independent contractor and servant as follows: "An independent contractor is one who undertakes to produce a given result without being in any way controlled as to the method by which he attains that result. A servant, on the other hand, is under the order and control of his master in respect to the means and method to be used to attain the thing for which he is employed. Citing Sadler v. Henlock (1855), 4 E. & B. 570 (578); Donovan v. Laing (1893), 1 Q. B. 629. The relation of contractor does not exist, but rather that of master and servant, when the employer retains the right to direct the manner in which the business shall be done, as well as the result to be accomplished; or, in other words, not only what shall be done, but how it shall be done. Singer Mfg. Co. v. Rahn, 132 U. S. 518, citing Railroad Co. v. Hanning, 15 Wall. 649 (656). Where a person contracts with another to do a lawful thing, retaining no supervision or control over the manner of carrying out the contract, he is not liable for the negligence of the contractor in doing such thing. Blake v. Ferris, 5 N. Y. 48. An independent contractor is defined in People v. Orange County Roads Construction Co., 175 N. Y. 84 (90), as one who contracts to perform the work at his own risk and gets the workmen for his servants, and he, not the State or corporation with whom he contracts, being liable for their misconduct. Mechanics employed to do repairs in their own way by their Art. 7. Master and Servant. own servants, without stipulated price for their work, are to be considered as contractors for whose negligence in carrying out the lawful contract the other party is not responsible. Hexamer v. Webb, 101 N. Y. 377. An employer is not liable for acts of a contractor or subcontractor. Slater v. Mesereau, 64 N. Y. 138; King v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 181; Engel v. Eureka Club, 137 N. Y. 100. "The rule that where the relation of master and servant, or principal and agent, does not exist, but an injury results from negligence in the performance of work by a contractor, the party with whom he contracts is not responsible for his negligence or that of his servants, is well established by the authorities in this State." Erwin on Torts, 38, citing Blake v. Ferris, 5 N. Y. 48; Pack v. Mayor, 8 N. Y. 222; Kelly v. Mayor, 11 N. Y. 432; McCafferty v. S. D. & P. M. R. R. Co., 61 N. Y. 178; King v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 181; Town of Pierrepont v. Loveless, 72 N. Y. 211; Ferguson v. Hubbell, 97 N. Y. 507; Herrington v. Village of Lansingburgh, 110 N. Y. 145; Roemer v. Striker, 142 N. Y. 134. That the master is not liable for the unauthorized act of a contractor where he did not advise or direct the act, or authorize the commission of the trespass. Ketchum v. Newman, 141 N. Y. 205. Where the performance of work contracted for was neither dangerous, nor extraordinary, the master was held not to be liable for negligent performance by the contractor. Negus v. Becker, 143 N. Y. 303 (310). The liability of an owner for default of a contractor engaged in the exercise of an independent calling is very fully considered in Burke v. Ireland, 166 N. Y. 305, where the defendant undertook to erect a building on his own land in the proper and usual way, omitting nothing by reason of which he could be charged with personal negligence, and taking such measures as a reasonably prudent man would do. An accident occurred which could not reasonably be anticipated or guarded against except by the experts employed to plan and erect the building. Held, that the defendant could not, within acknowledged principles of law, be held liable. This case is cited in Cochran v. Sess, 168 N. Y. 372, upon the question of the liability of a contractor to the employee of another contractor who sustains injuries by reason of an insecure Art. 7. Master and Servant. or defective foundation furnished by the owner of the building in which the accident occurred. The contractor is not liable for default of a subcontractor. Devlin v. Smith, 89 N. Y. 470. There are well-understood exceptions to this rule of exemption. Cases of statutory duty imposed upon individuals or corporations; of contracts which are unlawful, or which provide for the doing of acts which when performed will create a nuisance, are exceptions. In cases of the first-mentioned class the power and duty imposed cannot be delegated so as to exempt the person who accepts the duty imposed, from responsibility, and in those of the second class exemption from liability would be manifestly contrary to public policy, since it would shield the one who directed the commission of the wrong. Storrs v. City of Utica, 17 N. Y. 104; Lowell v. L. & B. R. R. Co., 23 Pick. 24; Hole v. S. S. R. R. Co., 6 H. & N. 488; Butler v. Hunter, 7 N. Y. 826. There are cases of still another class where the thing contracted to be done is necessarily attended with danger, however skillfully and carefully performed, or, in the language of Judge Dillon, is “intrinsically dangerous," in which case it is held that the party who lets the contract to do the act cannot thereby escape from liability for any injury resulting from its execution, although the act to be performed may be lawful. 2 Dill. on Mun. Corp., § 1029, and cases cited. When the work contracted for itself causes the danger or injury, the owner of the premises is liable to persons injured by the omission properly to protect the work, and cannot shield himself by plea and proof that the work was entirely committed to an independent contractor. Ann v. Herter, 79 App. Div. 6, 79 N. Y. Supp. 825, citing Murphy v. Perlstein, 73 App. Div. 256, 76 N. Y. Supp. 657; Downey v. Lowe, 22 App. Div. 460, 48 N. Y. Supp. 207, distinguishing Beck v. Carter, 68 N. Y. 283. But if the act to be done may be safely done in the exercise of due care, although in the absence of such care injurious consequences to third persons would be likely to result, then the contractor alone is liable, provided it was his duty under the contract to exercise such care. Engel v. Eureka Club, 137 N. Y. 100 (104), citing McCafferty v. S. D. & P. M. R. R. Co., 61 N. Y. 178; Connors v. Hennessey, 112 Mass. 96. There are certain exceptional cases where a person employing Art. 7. Master and Servant. a contractor is liable, which, briefly stated, are: Where the employer personally interferes with the work, and the acts performed by him occasion the injury; where the thing contracted to be done is unlawful; where the acts performed create a public nuisance; and where an employer is bound by a statute to do a thing efficiently and an injury results from its inefficiency. Berg v. Parsons, 156 N. Y. 109 (115). That interference, assumption of control, or direction given by the owner may render him personally liable for injuries by a contractor is held in Hawke v. Brown, 28 App. Div. 37 (43), 50 N. Y. Supp. 1032, recognizing the general rule that one who has contracted with a competent and fit person, exercising an independent employment, to do a piece of work not in itself unlawful or attended with dangers to others, to be done according to the contractor's methods, will not be answerable for a wrong by said contractor, his subcontractors, or his servants, in the transaction of such work. Citing 2 Thomp. on Neg. 899, 909, 910; Hexamer v. Webb, 101 N. Y. 382; Engel v. Eureka Club, 137 N. Y. 100. The authorities, relative to the liability of a municipality charged with the duty by statute of keeping its streets in a safe condition for travel, are collated in dissenting opinion, per Haight, J., in Wolf v. American Tract Society, 164 N. Y. 30 (37), and this general principle is reiterated in Uppington v. City of New York, 165 N. Y. 222 (282). When a city has power to let work and it enters into contract with competent contractors, doing an independent business, who agree to furnish the necessary materials and labor and make the entire improvement according to specifications prepared in advance, for a lump sum, or its equivalent, they are not the servants or agents of the city, but are independent contractors, and the city is not liable for their negligence, even when it reserves the right to change, inspect, or supervise to the extent necessary to produce the result intended by the contract, provided the plan is reasonably safe, the work is lawful, is not a nuisance when completed, and there is no interference therewith by municipal officers, which results in injury, citing numerous authorities. Same case, p. 233, lays down the rule that independence of control in employing workmen and in selecting the means of doing the work is the test usually applied by courts to determine whether the contractor is independent or not. |