$ 21. Change in the character of the relation during the progress of the stipulated work.

Whether the relation created by the

tracts, the employer dealt directly with the subcontractors themselves.

In Powley v. Vivian & Co. (1915) 169 App. Div. 170, 154 N. Y. Supp. 426, 10 N. C. C. A. 835, the plaintiff, who had entered into a dredging contract with the Vivian Company, was injured while operating a motor launch, which the company had hired from a third person, with the view of using it for the transportation of supplies, as well as for other purposes connected with the dredging work. The grounds of a decision to the effect that, at the time when the injury was sustained, the claimant was an employee within the intent of the Workmen's Compensation Law, were thus stated by the court: "Vivian Company was obligated by the agreement to furnish these supplies. The launchman was its employee, and it was its duty to furnish a man to run the launch. In performing that duty Vivian Company failed, and, as the claimant says, I had to get the supplies myself.''

In Samyn v. McClosky (1853) 2 Ohio St. 536, it was held that the employee in question was a contractor for the carpentry work, only on a building, and that, as to the residue of the work, he was merely the superintendent or agent of the defendant, the uncontradicted, testimony of the employee himself being to the effect that the defendant engaged him to put up the entire building, employ all the men, and indorse all their bills; that he engaged to do the carpentry work at 27 cents on the bill, and employ all the mechanics, etc.; that the defendant employed no one about the building; that he gave the employee possession of the ground, which he was to keep until the contract was executed; that the defendant was at the place of work once or twice a day, and gave him directions to keep everything safe; and that he had nothing to do with the mechanics.

In Stagg v. Taylor (1916) 119 Va. 266, 89 S. E. 237, one of the grounds upon which Stagg, a contractor, was held not to be liable for the death of a workman employed by one Flournoy, whom he alleged to be a subcontractor, was that, even if "there was enough evidence to carry to the jury the question whether Flournoy was the servant

original contract of employment had been altered before the time to which the claim has reference is a question of fact.1

of Stagg, and not an independent contractor under him, in the mere supervision of the work, there was clear and uncontradicted proof that Flournoy had the contract for the part of the work which Taylor was doing, and that Taylor was Flournoy's and not Stagg's employee; and it was competent for Flournoy to be a servant as to the former, and an independent contractor as to the latter, class of work."

Compare also the ruling that the fact that the master of a ship is charterer and owner pro hac vice does not necessarily deprive him of his power to create a lien on the ship in case of necessity. Thomas v. Osborn (1856) 19 How. (U. S.) 22, 15 L. ed. 534.

In Barnes v. Evans [1914; C. A.] W. C. & Ins. Rep. (Eng.) 109, 7 B. W. C. C. 24, where the claimant had been engaged by the respondent, a contractor, to do certain slating work on terms which placed the former in the position of a subcontractor, the evidence showed that the respondent's employers had complained of delay in the execution of this work; that the respondent had thereupon sent a slater and two laborers, for the purpose, as he informed the claimant, of "pushing the work on," and that the claimant at first objected to this arrangement, but eventually agreed to work with the men sent, and did so. Held, that these facts did not prove that the claimant had ceased to be an independent contractor when he consented to the new arrangement, and that he was consequently not entitled to compensation under the Workmen's Compensation Act, for an injury received while that arrangement was in force.

In Swart v. Justh (1905) 24 App. D. C. 596, where the injury complained of was caused by certain waste material which a contractor for the construction of a skylight had thrown down after the skylight itself was completed, one of the issues raised was whether he had undertaken the removal of the waste material at the request of the defendant, or in obedience to his directions. Held, that the jury were properly instructed that, if he had done this work in the capacity of a servant or agent, the defendant was liable.

In Washburn-Crosby Co. v. Cook

(1918) 70 Ind. App. 463, 120 N. E. 434, it was held that a special finding to the effect that the person employed owned and controlled the teams at the time the plaintiff was kicked by one of the horses did not conclusively prove that he was an independent contractor, where other findings, and the facts provable under the issues, showed that defendant had control or management of the horses in whole or in part, and that the person employed was subject to the orders of defendant in matters pertaining to the details of the stipulated work.

In Charlock v. Freel (1891) 125 N. Y. 357, 26 N. E. 262, affirming (1888) 50 Hun, 395, 3 N. Y. Supp. 226, the evidence showed that, after the completion of the sewer which the defendant had undertaken to construct, but before the repaving of the street was done, he was directed to raise the grade of the street at a certain intersection with another street; that, after raising the curbstones, he left the adjoining portions of the sidewalk flagging disarranged; that a storm occurred, and water collected in the spot left open by the removal of the flagstones, and that the workmen dug away the earth, so as to permit the water to escape through the curb into the sewer basin, the conse quence being the formation of the hole into which the plaintiff fell. It was argued that in the performance of the particular work, in the course of which the conditions were created which caused the accident, he was not acting as an independent contractor, but as a mere servant or agent of the city. But this contention did not prevail. The court said: "It is true that the contract primarily or principally related to the building of a sewer in the street, but by one of its provisions the power was reserved 'to vary, extend, or diminish the quantity of work during its progress,' and it was therein provided that 'the engineer shall also fix the price to be paid for all work that may be necessary to be done that is not included in the contract.' This provision may not have been obligatory upon the contractor as to work not related to, or in connection with, the principal plan of his agreement; but when, at the request of the chief engineer of the city, he undertook the work of raising the street grade, the contract was thereby extended so as 19 A.L.R.-18.

to include it. Coming between the completion of the sewer and the repaving of the street, and being designed to make the drainage better, it was work which was cognate in its nature to the principal undertaking, and the effect of its assumption was to continue the contract relations between the parties, with all the obligations and responsibilities that contract imposed, expressly or by legal implication. Nor could it, in my opinion, affect the question of the defendant's liability, if the department, or city engineer, had ordered him to do this particular work, and it could not be deemed to be comprehended within any of the provisions of his contract. The contractor assumed its performance, and was doing it with workmen employed by him. The direction of the city officers had nothing to do with the manner of the performance, and there was no interference with the workmen engaged under the defendant in the detail work."

In Mandatto v. Hudson Shoring Co. (1919) 190 App. Div. 71, 179 N. Y. Supp. 458, the claimant was a man with whom the general contractor for the erection of a building had made a subcontract for the excavation of the cellar. He made a verbal agreement with the Hudson Shoring Company, the subcontractor for the shoring up of an adjacent building, that each would assist the other; that he might use the blocking and timbers of the company and that the company might use his derrick. While his derrick was being used, his foot became caught in the slack end of a rope, and badly crushed. The court said: "The claimant was rendering service to the Hudson Shoring Company at its request. While there was no agreement to pay him in money for the service rendered, yet he was to receive the use of blocking and timbers as the consideration therefor. He was not engaged in the performance of any work for himself, nor upon his contract for excavating; but, while rendering such service, he was an employee of the Hudson Shoring Company, within the meaning of the Workmen's Compensation Law." The decision was reversed in (1920) 229 N. Y. 624, 129 N. E. 933, where the court adopted the views thus stated in the dissenting opinion delivered in the lower court: "In this case the claimant had no general employer, and, having none, his services were not loaned

$ 22. Independent contractor and partner, distinction between.

Where it is provided by the contract that the person undertaking the work is to receive a certain percentage of the profits accruing therefrom, the by such an employer. A new relationship of master and servant was not created, for the reason that the claimant was to receive no wages, and in no wise subjected himself to the orders of the Hudson Shoring Company, as a subordinate servant subjects himself to the orders of a superior master."

In Hartell v. T. H. Simonson & Son Co. (1916) 218 N. Y. 345, 113 N. E. 255, reversing (1914) 164 App. Div. 873, 148 N. Y. Supp. 433, where the plaintiff's intestate was killed through the negligence of a man whom his general employer had, upon request, sent with a team to act as driver for a loaded truck, the ratio decidendi, in one point of view, was that the complaint had been wrongly dismissed, because there was evidence from which the temporary transfer of the driver to the service of the defendant might be inferred. The following passage, however, reflects what seems to be a somewhat questionable theory of the situation created by the despatch of the driver: "In the case under consideration, Durr, the truckman, did not stand in the relation of an independent contractor to the defendant. He did not undertake to deliver lumber for the defendant. He simply furnished a team and driver to enable the defendant to do its own work. The case is the same as if the defendant had bought a team and hired a driver to aid in its business." On general principles, there would seem to be no reason why, under the circumstances shown, Durr should not have been regarded as an independent contractor in respect merely of the particular work of hauling the truck.

1 The material facts presented in Marsh v. Hand (1890) 120 N. Y. 315, 24 N. E. 463, 1 Am. Neg. Cas. 390, affirming (1886) 40 Hun, 339, are thus stated in the opinion: "Hand and one Congdon, as executors of the will of Stephen D. Hand, deceased, entered into an agreement in writing with Buell Cumber, by which the latter agreed to occupy for one year, from the 1st day of April then next, a farm of which the testator died seised, and

rights and liabilities of the parties to the contract, and of third parties, are susceptible of being considered with reference to the question whether the relation created is a partnership. A few cases involving this situation have been reported.1

to work and cultivate it in proper manner, to keep the fences in good repair, and to take care of all the stock left on the farm by them, he to furnish a team to do the work. Each party to have one half of the produce and one half of the value of the growth and increase of the stock. The team to be fed from the common product, and each party to furnish one half the seed. The executors having the right to go on the farm, but not to damage the crops or to interfere with the work or interests of Cumber. He to sustain any loss or damage to the stock occasioned by his neglect, and any loss or damage unavoidably occurring to the stock should be equally borne by the parties to the contract. And Cumber should leave on the farm as large a quantity of hay and stock, and as good, as he found on taking possession, or pay the' other parties 'the cash value of the same,' and to keep nothing on the farm in which the other parties should have an interest." The decision to the effect that the Hands were not liable for personal injuries resulting from an attack made by a ram, which, with other sheep, had escaped from the farm occupied under the contract, on to the adjoining farm of the plaintiff, was based on two grounds thus stated: Cumber's "service in working the farm was an independent one, and not subject to the control of the other parties.

He was an independent contractor in the sense that he had the right to be controlled solely by his own judgment, without interference by the other parties. . . Nor was the work a joint enterprise in the sense sought to be applied to it. The Hands were in no manner engaged with Cumber in carrying forward the work. While they furnished and left the stock on the farm, and were to have a share in the products, he had the entire responsibility of carrying on the business of working it, and accounting for their share in the results. He was the contractor who undertook to do all this, subject only to the terms of the contract he had made with them to do

In one case, where the ratio decidendi was that the contract under re

it." The cases cited in support of the theory of a "joint enterprise" (Champion v. Bostwick (1837) 18 Wend. (N. Y.) 175, 31 Am. Dec. 376, and Stroher v. Elting (1884) 97 N. Y. 102, 49 Am. Rep. 515), were declared not to be precedents in point, because they involved an element not present in the case under review, viz., "participation in the service from which the fund to be divided was derived." The court said: "Cumber, by the contract, undertook to occupy and work the farm and manage the stock left there in his own way, with a view to results and without any contribution of the defendants Hand to the service, with the performance of which they had nothing to do. The practical effect of the contract was that the executors should have a share of the products by way of compensation for the use of the property, and that Cumber was entitled to the other share as compensation for his labor in performing the contract. No negligence of the latter in the performance of the work, to the prejudice of third parties, could charge the Hands with liability."

In Thomas v. Springer (1909) 134 App. Div. 640, 117 N. Y. Supp. 460, 134 App. Div. 982, 119 N. Y. Supp. 463, reversing (1909) 118 N. Y. Supp. 475, it was held that the plaintiff, a spectator at a play performed in the defendant's theater, could not recover for injuries caused by the fall of a spotlight. The contention unsuccessfully advanced was that the Fischer Company, by which the performance was being given, was a copartner of the defendant under its contract, which provided that it was to present the play for a stipulated percentage of the gross receipts. The court said: "It seems to me that the contract is precisely as though the compensation had been fixed at a definite sum. It is unnecessary to cite authority upon the proposition that the essential requisite of a copartnership is an agreement to share profits and losses as such. Here the Fischer Company was to receive a percentage of the gross receipts, not as its share of profits, as such, for its contribution to a joint enterprise, but as compensation for presenting a play in the defendant's theater. It is quite true, as the respondent contends, that the contract did not create the rela

view did not create a partnership, the point so determined seems to have been tion of landlord and tenant. The defendant retained possession and control of the theater; but the Fischer Company was an independent contractor, not a copartner, and its servants were not his servants."

In Rice v. Smith (1902) 171 Mo. 331, 71 S. W. 123, where the plaintiff's husband was employed by one Raynes to work for him in the mine in which he was killed by the fall of a rock, Upon the trial the plaintiff's evidence tended to show these facts: Defendants were licensees of the mine in question, and had been operating it before the accident. The contract between them and Raynes was to the effect that Raynes, at his own expense, was to do all that was necessary to be done underground to mine the ore, put it in the tub, and attach the tub to the hoisting apparatus; that the defendants were then to see to the hoisting it, preparing it for sale, and selling it; that Raynes, for his share, was to have half the proceeds; and that he was to have full control of all operations underground. As a witness for plaintiff, he testified that he "rented" the ground from the defendants, that he was to hire his own men and pay them; that he employed Rice for daily wages, and that the defendants had nothing to do with employing him. A judgment based on the theory that Raynes was an independent contractor operating the mine on his own account, and that the deceased was his servant, was reversed. Commenting upon the testimony of Raynes that he had "rented" the ground, the court said: "That is more in the nature of a conclusion drawn by the witness than the statement of a fact. That is his opinion as to the effect of the contract, and, whilst it may be correct in a certain aspect, yet it is not entirely correct as affecting the law of this case. If Raynes was simply a renter, then the defendants had no interest, except their rents-no, interest in the operation of the mine. Although Raynes and the defendants are, by the terms of the contract, to share equally the profit of the operation of the mine, yet they are not thereby made partners in the full sense of that word. Raynes is to a certain extent an independent contractor, and has his duties to perform, for neglect of which he

unnecessarily raised, inasmuch as the evidence from which the inference was drawn that the person employed was

alone is responsible, and likewise the defendants are to a certain extent independent contractors, and have their duties to perform, as to which they alone must account. But there are also a community of duty and a community of responsibility arising out of his contract. Raynes was to do the underground work, and as to this he was alone responsible. If one of his employees should be injured through his negligence in reference to that part of the work, he alone would be liable. And, on the other hand, if one of the employees of the defendants, engaged in hoisting the ore or preparing it for market, should suffer by the negligence of the defendants in reference to that part of the work, they only would have to respond. But the complaint here made does not relate to the independent duty that Raynes was to perform, nor to the independent duty that the defendants were to perform, but it relates to the condition of the mine, which is the subject in which there was a community of interest in both contracting parties. The contract, as stated in detail by Raynes in his testimony, does not mean that the mine is rented to him, although he uses that term; it means that he and the defendants are to work it for their joint account, and share the profits. Raynes, for his share of the burden, undertook all the underground work, leaving to defendants only the lighter and less dangerous part, and, to compensate for the greater burden in the operation that was thrown on Raynes, the defendants contributed to the joint concern the usufruct of the mine, and

not a partner of the employer would also have warranted the conclusion that he was a servant.2

thus the investments were equalized. So far as the underground operation is concerned, the case may be stated thus: Raynes was to furnish the labor, and defendants were to furnish the mine, and they were to share the profits. In that state of the case the duty devolved on the defendants to see that the mine they so furnished was in a reasonably safe condition for men to work in."

2 American Steel Foundries v. Industrial Bd. (1918) 284 Ill. 99, 119 N. E. 902.

In Wright v. Fissell (1921; Ch. Ct.) 92 N. J. Eq. 508, 113 Atl. 699, the plaintiffs in a suit for an accounting had undertaken to use their "best efforts, influence, and endeavors" to obtain contracts for the defendant from the United States government, and were to receive, in consideration of their services, one half of the profits on any and all contracts which they might procure. "They were not attorneys, agents, or employees, nor were they other than independent contractors, dealing with the defendant for half his profits in consideration of their influence, and the enlisted influence of others with the government's officials." The court was of opinion that they "were not copartners

with the defendant, promoting a common enterprise. They were not to share losses as well as profits, and there was no privity between them and the government." The bill was dismissed on the ground that the agreement was against public policy. Riggs v. Standard Oil Co. (1904) 130. Fed. 199. C. B. L.

Headnotes by MASON, J.