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house keeper without being an innkeepe'*; or the same person may
engage in both employments; just as a livery stable keeper may also
be a common carrier of passengers; but we do not think his doing

Digitized by


AUGUST TERM, 1880. 319

Minor ▼. Staples.

£0 will make him responsible in the one capacity for liabilities in-
curred in the other. We are not now speaking of bath-rooms at-
tached to or kept within hotels, but of separate buildings, erected
upon the seashore, and used, not as bath-rooms, but as places in
which those who bathe in the sea change their garments, and leave
their clothes and other valuables, while so bathing. It seems to
us that such an establishment is as distinct from an inn as a wharf
or a boat-house would be; and that an innkeeper, as such, can no
more be made responsible for property stolen from such a bath-
house than he could be for property stolen from a wharf or a
boat-house, if he happened to be the keeper of the latter as well as
the former.

This suit is against the defendant as innkeeper. The declaration
avers that he kept a common inn, and received the plaintiff into
said inn, together with his money, and a watch, and a chain, and
a ring ; and that while the plaintiff was a guest therein, with his
said money, watch, chain and ring, said property was wrongfully
taken and carried away and wholly lost to him. Such are the ma-
terial averments in the declaration. But the evidence shows that
the property was taken from a bath-house, standing upon the sea-
shore or beach, at a considerable distance from the inn, while the
plaintiff was absent bathing in the sea. We think there is a fatal
variance between the allegations and the proof ; and that under
such a declaration, and with such evidence, the plaintiff cannot re-
cover. We do not find it necessary to consider, and of course we
do not undertake to determine, what the rights and liabilities of
the parties would be under a different declaration. All we mean
to decide is that under such a declaration, and with such evidence,
the action is not maintainable.

Judgment for defendant.

Appletok, C. J., Virgin, PcTERSy Libbet and Syhonds, JJ,

Digitized by


320 MAINE,

MeOarthj ▼. Second Parish of PortUnd.

HcCarthy V. Second Parish of Portland.

(71 Me. 818 J
Afwiter and servant — negligence — contro/Ctor — elater.

The plaintiff was injured by the carelessness of men occupied in repairing Um
roof of defendant's building. The men were employees and under the
orders of one who carried on the business of slating roofs, and who was
engaged by the defendant to do the job in question. Held, that the slater
carried on an independent employment, and the defendant was not liable.*

ACTION for personal injuries. The opinion states the case*
The plain tifp had judgment below.

Nathan d- Henry B. Cleaves, for plaintiff.

W. W. fhomas, c7r., and George E. Bird, for defendants.

Walton, J. Some men at work upon the roof of the Second
Parish church in Portland carelessly allowed a ladder in use by
them to be blown down by the wind, and it fell upon the plaintiff
and injured him. The question is whether the parish is responsi-
ble for the injury. We think not True, the law makes a master
responsible for the negligence of his servant, but the employment
of one who carries on an independent business, and in doing his
work does not act under the direction and control of his employer,
but determines for himself in what manner it shall be carried on,
docb not create the relation of master and servant, and this respon-
sibility does not attach.

The general rule, says Judge Thomas, in Linton v. Smith, 8
Gray, 147, is that he who does the injury must respond ; that the
well known exception is that the master shall be responsible for
the doings of the servant whom he selects, and through whom,, in
legal contemplation, he acts; but when the person employed is in
the exercise of a distinct and independent emplojrment, and not
under the immediate supervision and control of the employer, the
relation of master and servant does not exist, and the liability of a
master for his servant does not attach.

In DeForrcf^t v. Wrifjht, 2 Mich. 368, the court say that where an

«To same effect, Hat» v PliO. A So, MaU St, Co. (SB Penn. St. 8B0), 33 Am Rep. 40S.

Digitized by


AUGUST TERM, 18S0. 321

McCartlif v. Second Parish of Portland.

employee is exercising a distinct and independent employment, and
IS not tinder the immediate control, direction or supervision of the
finployer, ilie latter is not responsible for his employee's negligence.
In that case a drayman was employed to haul a fjuantity of suit
from a warehouse, and deliver it at the store of tlie employer at so
iiiucli per bari-cl, and while in tiie act of delivering the salt, one of
the barrels, through the carelessness of the dniyman, rolled against
I he plaintiff and injured him, as he was passing upon the sidewalk,
stud it %vas held that the employer was not liable for the injury.
In another ease in the same volume, Moore v. Sanhorne, 2 Mich.
510, the coui*t held that where one was employed to cut and haul
all the logs on certain land of the employer, and deh'ver them at a
phite named, the employer to have nothing to do with the cutting
or liauling, the relation of master and servant was not thereby
ci*c»ated, and that the employer would not bo liable for the careless-
ness of his employee in performing tlie labor.

•* Although, in a general sense, every one who enters into a con-
tr.jct may be called a 'contractor,' yet tluit word, for want of a
iK'lior one, has come to be used with .si>ocial reference to a person
ivlio in the pursuit of an independent hnsine{>s undertakes to do
epccific jobs of work for other persons, without submitting himself
to their control with resjiect to all the petty details of the work. *

* * ♦ The true test, as it seems to ns, by which to determine
'/liether one who renders servibe to another does so as a contractor
or not, is to ascertain whether he renders the 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 to h^ accomplished." * * * ** One who contracts to do a
s|iecific piece of work, furnishing his own assistants, and executing
the work either entirely according to his own ideas or in accord-
ance with a plan previously given him by the person for whom the
work is done, without being subject to the latter with respect to
the details of the work, is clearly a contractor, and not a servant/'
Shearm. & Redf. on Neg., §§ 76-77.

*• The difficulty always is to say whose servant the person is that
does the injury; when you decide that the question is solved. *

* * When the person who does the injury exercises an independ-
ent employment, the party employing him is clearly not liable."
Williams] J., in Milligan v. Wedge, 12 Ad. & El. 737. In that

a butcher employed a drover to drive a beast home for hira,
Vol. XXXVI— 41

Digitized by



MoCurtby v. Second Par'mh of Portland.

and the drover emplojed a lH>y, and through the boy's negligent
iriving the beast mn into the plaintiff's pi'emises and damaged his
pro^xirty, and the court hold that the boy was the servant of the
drover, and not the servant of the butcher, and that tlie latter wjis
r.ot liable for the injury.

*^I understand it to be a clear rule in ascertaining who is liable
for the act of a wrong-doer, that you must look to the wrong-doer
himself, or to the lirst person in the ascending line who is the
employer and has control of the work ; that you cannot go further
back and make the enii)loycr of that person liable."' Willes,
J., in Mifrray v. Curric, L. R, G C. P. 24. In that case a steve-
dore v/;is employed to unload a vessel, and the plaintiff was injnntl
by I ho carelessness of one of the vessel's crew, who at the time of
the injury was working for and nnder the direction of the stevedoiv.
and the court Ik Id that the employer of the stevedore was not liable
for the injury.

In liCcdiG v. Railwaij Co,, 4 Exch. 244, a contractor's workmen,
in const ructing a bridge over a public highway, negligently allowt*d
a stone to fall upon one passing beneath, and it was held that the
railway company was not resjionsible for the injury. Platt, B.,
put lliis significant inquiry • *• Suppose the occupier of a house were
to du-cct a bricklayer to make certain repairs to it, and one of In^
workmen through clumsiness were to let a brick fall npon a parser
by, is the owner to be liable?" The decision shows, that in the
opinion of the court, the question should be answered in the negative*

In Mvrphey \, CaralbyS II. & C. 401, the plaintiff wasmjureil
by the falling of a bale of cotton, which had been negligently piled
by i)ersons employed by the defendant ; bnt it appearing that the
piling was doiie under the direction of one Jones, who was em-
ployed by the owner of the warehouse in which the cotton was
stored, the coiut held that this fact relieved the defendant from
responsibility. **The bales which caused tho mischief," said Pol-
lock, C. B., ''having been stowed nnder Jones' directions, I think
that he and his master alone aro res])onsible."

In Pearson v. Cox, 2 C. P. Div. 3G0, a tool, called. a straighteclge,
was jostled out of the window of a house that was being built
and fell upon the plaintiff and injured him ; but it appearing that
tho act which caused tho straightedge to fall was the act of one of
the men employed by the mason, a sub-con tractor, ^.he court bdd
that the builders of the house were not liable.

Digitized by


AUGUST TERM, 1880. 323

McCarthy v. Second Parish of Portland.

In Forsyth v. Hooper^ 11 Allen, 419, the defendants had con-
tracted to cast a chime of bells and place them in the tower of the
Arlington street church, in Boston. The i)laintiff was injured by
a chain carelessly thrown from the Lower by one of the men en-
gaged in hoisting the bells. Tne j«ry I'cturned a verdict for the
defendants, and the court sustained it upon the ground that the
defendants had employed one Leonard to do this part of the work,
and that the evidence, though conflicting, was sufficient to justify
the jury in finding that the defendants had relinquished to Leonard
the management and control of the manner of doing the work.

In Wood V. Cohh, 13 Allen, 58, the court suy it is too well settled
to admit of debate, that the employer of one who exercises an in-
dependent employment is not responsible for the negligence of one
in the lattei''s service. In that case the defendants, who were
dealers in fish, had employed a truckman to deliver fish to their
customers each Friday, for a dollar a day, he furnishing his own
team and taking such route as suited his convenience. On one oc-
casion, being sick, he told his servant to get help, and the defendants
allowed a boy in their employ to drive one of the teams ; and he,
while doing so, drove against the plaintiff, and caused the injury
complained of; and the court held that at the time of the injury
the boy was the servant of the truckman, and not the servant of
the defendants, and that the latter were not responsible for the

In Eaton v. E. <& N. A, Railway Co., 59 Me. 520 ; s. c, 8 Am.
Eep. 430, the question we are now considering was fully examined,
and the doctrine of the foregoing cases affirmed.

Assuming therefore, that the law is now well settled that au em-
ployer is not responsible for a contractor's neglfgence, nor for the
negligence of a contractor's workmen ; and that one who carries
on an independent business, and in the lino of his business is em-
ployed to do a job of work, and in doing it, does not act' under the
direction and control of his employer, but determines for himself
in what manner it shall be done, is a contractor within the mean-
ing of the law, let ns apply it to the case before us.

The case shows that Canselo Winship was a slater by trade, and
carried on the business of a slater, and had done so, in Portland,
for more than twenty years, keeping a shop, and a slate on which
to receive orders, and men constantly in his employ to assist in exe-
cuting snch orders as he shonld receive. He was therefore cany-

Digitized by


324 MAINE,

McCartUj v. Second Parish of Portland.

iug on what the law deuominates au independeut business. The
case also shows that he had been employed to slate the Second Par-
ish church, in Portland., then being built, and to do other work upon
it ; that the roof afterward leaked and he was requested to repair
it ; that he took two men, then in his employ, and went into the
tower of the church and assisted them in putting out a ladder to
enable them to get on and oflf the roof, and to carry on the materials
needed to make the necessary repairs ; that the men continued to
use the ladder (taking it into the tower when they went to their
dinners, and putting it out again upon their return) till about three
o'clock in the afternoon, when it was blown down and fell upon the
plaintiff, as already stated. No officers or agent of the parish inter-
fered with the men, or gave them any directions whatever. On the
contrary, the chairman of the parish committee, by whom Winship
was employed, testifies that he entrusted the matter entirely to him,
as ])0 had been in tho habit of doing ; and this is confirmed by the
men and contradicted by no one. Winship paid his men but a dol-
lar and half a day, while ho charged and received from the parish
four dollars a day for tiieir labor.

Ilere, then, wo have a case, wheixj a man, who is carrying on an
independent business, is employed, in the regular course of his busi-
ness, to do a job of work ; he is left entirely free to do the work as
he pleases; ho sets two of his own servants at work ujwn the job,
charging his employer a much larger sum for their labor than he
pays them ; they so negligently place a ladder in use by them that
it is blown down by the wind and injures a passer-by. Now, if it
be a rule of law that one who carries on an independent business,
ami in doing jobs of work for others acts independently, so far as
the manner of doing it is concerned, is a contractor, and not the
servaiic of his employer, can there be a plainer case for the applica-
tion of the rule than this ? Wo think not If Winship and his
workmen <ian, under these circumstances, be regarded as the ser-
vants of the parish, so as to make the parish liable for their negli-
gence, we fail to see why the same rule would not apply to the
expressman, who is employed to carry a trunk to a depot, or to the
hackman who is employed to drive one about town, or to the scis-
sors-grinder who stops in front of ahouse and is employed to sharpen
the knives and the scissors of its occupants, or to tho plumber and
the gas fitter; and why it would not have applied to the drover, and
the stevedore, and the truckman, and drayman, in the case cited

Digitized by


AUGUST TERM, 1880. 325

Prince v. Skillin.

We think it would. In principle the cases are not distinguishable.
Our conclusion is that the verdict in this case is clearly wrong,
and must be set aside.

Motion sustained. Verdict set aside. New trial granted.

Appleton, C. J., Babbows, Virgin, Pbtbbs and Libbey, J J.,

Prince v. Skillik.

m Me. 861.)
Ofice — tiUe to — judicial notiee — eanvasHng hoard — $eatter%ng vote$.

When there are two conflicting legislatures, each claiming of right to exercim
legislative functions, it is for the courts to determine which has the lawful
authority, and on such inquiry the courts are bound to take judicial notice
of the acts of the executive and legislative departments, of historical facie,
and of matters of public notoriety and current interest.

The decision of the governor and council as a canvassing board does not con.
elude the other branches of the government.

A decision of such canvassing board, throwing out 6,311 votes because two
were returned as '* scattering,'* but which by an amended return were shown
to have been cast for William B. Skillings, and which in any event could
not have changed the result, is illegal and void.

PROCEEDING to try title to office. The opinion states the

Arden W. Coombs, for petitioner^

Bion Bradbury, L. D. M, Sweat and Clifford £ Clifford, for re-

Appleton, C. J. The plaintiff, claiming to have been duly
elected county commissioner for the county of Cumberland, brings
this bill against the defendant whom he alleges to have been wrong-
fully declared elected to that office when in fact he was not so
elected .

This proceeding is under and by virtue of chapter 198 of the acta
of 1880, entitled ** An act providing for the trials of causes involve
ing the rights of parties to hold public offices/'

Digitized by


336 MAINE,

Prince v. Skillin.

The processes bj which rights are to be established and wrongs
redressed are within and subject to legislative control. Old forms
and modes of procedure may be abolished and new ones established.

All offices, except when legislative authority is limited or re-
stricted by constitutional provisions, arc subject to the will of the
legislature. There is, with thtvabove exception, no vested right in
an office or its salary. Tiie office may be abolished. The mode of
appointment may be changed. The length of time of official exist-
ence may be shortened . The compensation for official services may
be diminished. Far well v. Rockland, 02 Me. 298; Butler v. Penn-
sylvania^ 10 How. 403; Parker v. Pittsburgh, 4 Barr. 51; Conner
V. Neio York, 1 Seld. 291; Taft v. Adams, 3 Gray, 126.

The act, chapter 198 of the acts of 1880, was passed to enable part-
ies duly elected to office but not declared to be so elected, to contest
their rights before a judicial tribunal. The defendant was declared
elected to the office in controversy by the canvassing board of the
State. The allegations in the bill are., that errors occurred in the
doings and proceedings of .jtho board, and that upon a fair and hon-
est count the plaintiff was" duly elected, but that the defendant has
usurped the office to which he v/as so elected. ** When one is
charged with usurping an office in the Commonwealth, there must
Ijc," remarks the court in Com. v. Fowler, 10 Ma^s. 290, '' authority
in this court to inquire into the truth of tlie charge.'' This act
gives a remedy in case of an erroneous or fraudulent count by the
canvassing board. It will hardly be contended that if by errors of
computation, throwing out legal returns, or counting illegal ones,
a candidate not duly elected is wrongfully declared to be elected,
there should not bo some remedy provided for the party actually
elected, by which the wrong done may be corrected. If the error
is not subject to correction, then the canvafssing board, in the exer-
cise of irresponsible power, have full and absolute control of the
government, and may effectually stifle the voice of the people, ac-
cording to tlicir sovereign will and pleasure.

Before the passage of the act under consideration, the only existing
j)rocoss by which the right of one unlawfully holding office could
be inquired into, was by quo warranto. This writ issues in behalf
of the State against one who claims or usurps an office to which he
is not entitled, to inquire by what authority he supports his claim
or sustains his right. The proceeding is instituted by the attorney-
general on his own motion or at the relation of any person, but on

Digitized by


AUGUST TEKM, 1880. 327

Prince v. Skillin.

his official responsibility. It lies against an officer appointed by
the governor and council or elected by the people. It removes the
illegal incumbent of an office, but it does not put the legal officer
in his place. It is insufficient to redress the wrongs of one whose
rights have been violated.

To restore a person to an office from which lie has been unjustly
removed or unlawfully excluded, the proper process is by mandamus'
By this, the rights of one lawfully entitled to an office, which has
been illegally withheld, may be enforced . Strong, Petitioner, 20
Pick. 497.

By quo warranto the intruder is ejected. By mandamus the legal
officer is put in his place. The act, chapter 198, accomplishes by one
and the same process the objects contemplated by both these re-
sults. It ousts the unlawful incumbent. It gives the rightful
claimant the office to which he is entitled. It affords a speedy and
effectual remedy instead of the tedious and dilatory proceeding of
the common law.

It is insisted that this bill for various reasons cannot be sustained.
The grounds of objection to its maintenance we propose to examine.

1. The respondent contended *' that the legislature which passed
the act authorizing this, and the governor approving it, could not
rightfully do so, because there was a prior de facto legislature with
a de facto governor, as set forth in the respondent's answer, not
ousted by any competent tribunal."

The act in question was passed by an organized and acting legis-
latui*e, approved by tlie governor and comes before us with all the
indicia of validity by which any act of any past legislature is or can
be evidenced.

When there are two conflicting legislatures, each claiming of right
to exercise legislative functions, it is for the court to determine by
which body legislative authority can be lawfully exercised. In
answer to inquiries made by certain gentlemen claiming official
position under date of January 23, 1880 (70 Me. i)^'2), this court
used the following language: "When different bodies of men,
each claiming io he and to exercise the functions of the legislative
department of the State, appear, each asserting their titles to be
regarded as the law-givers for tiie people, it is the obvious duty of
the judicial department, who must inevitably, at no distant day,
be called to pass upon the validity of the laws that may be enacted
by the respective claimants to legislative authority, to inrpiire and

Digitized by


328 MAINE,

Prince v. Skillin.

ascertain for themdelves, with or without questions presented by the
claimants, which of those bodies lawfully represents the i)coplc
from whom they derive their power. There can be but one lawful
legislature. The court must know, for itself, whose enactments it
will recognize us laws of binding force, whose levies of taxes it wilJ
enforce when brought judicially before it, whose choice of a prose-
cuting iJfficer before the court it will respect. In a thousand ways,
it becomes essential that the court should forwith ascertain and take
judicial cognizance of the question : Which is the true legisUirturer
AVe are bound to take judicial notice of the doings of the executive
and legislative departments of the government, when calleci "F"
by proper authorities to pass upon their validity. We are bound
to take judicial notice of historical facts, matters of public notoriety
and interest passing in our midst. These views are in full accord
with the decisions of our highest tribunals. In SwinneT'ton^.
Columbian Ins, Co., 37 N. Y. 188, it was objected that there ^as "♦^
evidence of a civil war. "This objection," observes Hunt, J., 'I
do nc ' consider a sound one. The rule I take to be this : That
matters of public history, affecting the whole people, are juclically
taken notice of by the courts; that no evidence need be produced
to establish them ; that the court in ascertaining them, resort to
such documents of reference as may be at hand and as nnay be
worthy of confidence. Thus in the prize cases already ci ted (*^
Black, 667), the court use this language : ' The actual existence of
civil war is a fact in our domestic history which the court is bound
to notice and to know.' There the general facts connected with the
history of the case, seem to have been assumed as within th^ judi-
cial cognizance of the court Greenleaf in his work on Evidence,
vol. 1, § 6, says, courts 'will also judicially recognize the political
constitution or frame of their own government ; its essential lyoUtical
agents or public officers, sharing in its regular administration ; and
its essential and regular political operations, powers, atid action?.
Thus, notice is taken, by all tribunals, of the accession of the chief
executive of the nation or State, under what authority they act;

Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 37 of 123)