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servant works under the continued direction and control of the employer; the independent contractor is engaged to do a specific job, and as to methods and means is largely independent of the party who ordered the work done; his obligation is to furnish a proper completed result, in many cases furnishing material as well as performing or providing the labor.
Circumstances Surrounding. For the purpose of determining the status of the independent contractor, it is not conclusive that payment is by the job, or to the contrary by the day or its equivalent. All the circumstances surrounding the employment, the kind of work undertaken, the independent character of the business of the contractor, his employment of subordinates, are elements entering into the determination. Whether the employer often or regularly employs servants or contractors for similar work may be of importance also. Whether the employer has the right to terminate the employment at any time has significance, although it is not conclusive.
Direction of an Engineer. The fact that the work is done under specifications as to the manner in which the work shall be carried on, that the work is done under the general supervision of an engineer, or that the employer reserves the right to demand the discharge of an employee deemed by him incompetent, does not destroy the relation of independent contractor. In most important contracts for public work such provisions exist, where the character of independent contractor can not well be questioned.
Architects and Engineers. The architect who inspects the construction of a house is not an employee of the owner. What is the status of an engineer? If hired directly by a city or railroad company or an individual, he is an employee; if hired directly by an engineering firm employed by a city to report upon a scheme for water supply, or grade-crossing abolition, or electric lighting, or to test boiler and engine plants, he is the employee of the independent contractor and not of the city or railroad or other individual employer.
Opportunity for Misunderstanding. It is well to appreciate that the terms under which work is done are often none too explicit, and frequently oral; that there is an opportunity for a disagreement as to the facts determining whether a man was an employee or independent contractor, with a resulting lawsuit; and that the distinction becomes important if a question arises whether a workman is an employee and included under the provisions of a "Workmen's Compensation Act," although in some cases Statute Law has provided that the employer is liable to servants of an independent contractor. The careful engineer will attempt to avoid difficulty of this sort in advance, if opportunity occurs; or, in a case where injury has resulted, will endeavor to secure such facts touching this matter
as he may in his client's interest, as well as facts against his client's interest. The lawyer ought to know both sides of the case, whether it be to indicate the desirability of a private settlement or to allow him to understand the case in all its bearings.
Independent Contractor Responsible. The employer, whether municipality, other corporation, or individual, is in general not responsible personally or otherwise to third parties, to other employees, or to the employees of the contractor for the negligent or other wrongful acts of the independent contractor. The relation of master and servant is completely absent. Contracts sometimes specifically provide that the contractor shall be responsible for the negligence of his employees.
Exceptions. If, however, the specifications or other directions to the contractor are the cause of some injury which, except for such instructions, would not have occurred, the employer, and not the contractor, is liable. The same is true where the character of the work naturally or necessarily brings about the injury; where the result is due not to the way the work is done, but to its being done at all; or where defective plans and methods caused the injury and not the way they are carried out. So also in the case of work so inherently dangerous that injury will result unless extraordinary precautions are taken, where the employer should see that they are taken. Where the employer exercises interference with the work in a way to contribute to the injury, the employer and not the contractor is liable. The power or authority which an engineer has over the contractor in many classes of work is such that the engineer should guard against exercising his control in such a way or in such matters that the employer may become responsible and liable for injuries that may result, perhaps on the ground that the engineer, as a participant in the tortious act, involved his master.
Legal Duty of Employer. Where, by statute, under the Common Law or otherwise, a person has a duty imposed upon him and the execution of the work brings such a duty into action, the use of an independent contractor does not divest him of the duty. The proper lighting of a sewer trench has been held to be a duty upon the city or the private owner, which no arrangement with a contractor can set aside. The employment of an incompetent contractor or the furnishing of unsafe appliances by the employer also leaves the employer liable.
Rights of Third Parties. An agreement by the contractor to assume all liability is effective to protect the employer eventually, but it does not destroy the right of a third party to bring his suit against the employer; the employer may recoup himself, and the bond usually required should provide proper security for this purpose.
Statute Liability. In some States, a statute provides that the employer
is liable for injuries to employees of the independent contractor due to defects in ways, works, machinery, plant, or tools, furnished by the employer or for whose use he is responsible. Such a provision occurs in the Workmen's Compensation Act of at least one State. The Common Law may in some cases hold him equally responsible without such a statute.
GENERAL STATUTE REQUIREMENTS FOR EMPLOYERS To Secure Health and Safety. There are other statute laws in many States, affecting manufacturing and other establishments, for the purpose of better protecting the safety or health of employees; for guarding dangerous machinery; for inspecting elevators and steam boilers; for prescribing fire protection and means of escape; for improving sanitary conditions ; for regulating work in tenements; for fixing maximum hours for work for women and children; and for many other purposes.
To secure greater safety in railroad operation there are requirements with relation to signals, brakes, couplers, clearances, frogs and guard rails, hours of service, number of crew on trains, and many others.
The statutes of each State must be examined and also the statutes of the United States, which in the case of railroads exercise important powers of regulation for safety under the so-called Interstate Commerce Act.
Definition. There seems to be some necessity for differentiating bailments from agency. Bailment occurs when personal property is transferred temporarily for some special purpose without transfer of title and with little or no authority vested in the bailee other than to care for the property.
Classification. Bailments are of two general classes : I. Gratuitous bailments, for the benefit of one of the parties to the bailment. II. Bailments upon consideration, for the mutual benefit of the parties.
In class I, they may be for the benefit of the bailor, where the property is gratuitously kept or carried, or worked upon; or they may be for the benefit of the bailee, when the thing is lent to him. In class II, they are pledges, as security for performing some obligation, for payment of a debt, or in contracts of hiring. There are four cases of hiring: the bailor may hire the bailee to do work on something; or to take custody of it (store it); or to carry it from place to place; or the bailee may hire from the bailor.
Consideration. As to consideration, which seems necessary under the law of contracts, in bailments for mutual benefit it is directly evident; in gratuitous bailments the deprivation of possession is evidently a detriment
to the bailor, which constitutes a sufficient consideration, while the viewpoint of the law seems somewhat stretched in holding that “the owner's trusting him with the goods is a sufficient consideration to oblige him to a careful management.' The doctrine comes from the Civil Law; and the Common Law, from necessity apparently, finds means to harmonize it. Bailments occurring through the action of law, and some others, may exist without the mutual assent of the parties; here again the law of contracts seems not altogether applicable.
Delivery. For a bailment to occur, delivery and acceptance of the property are necessary, but these may be constructive instead of actual, or may come about by operation of law. A seller who holds goods after a sale (not a contract to sell) does so as bailee. Constructive delivery may occur where manual delivery is impossible. An officer holding goods under legal process is a bailee. Being in possession, the bailee may exercise rights against any third party but may not dispute the bailor's title.
Care. An important feature is the care demanded of the bailee. At one time the terms “slight," " ordinary," and "great ” diligence were used, depending upon the apparent advantage to the bailee; but the better rule now seems to be that the bailee must exercise reasonable care the circumstances of the case," somewhat analogous to the rule as to negligence. The care and responsibility may be fixed by specific agreement. The bailee must in any case act in good faith and must return the property to the bailor at the termination of the bailment, which may occur by the act of the parties or by operation of law. The place of delivery ordinarily is the place where the goods have been kept. The bailment may sometimes be at the option of the bailor; it may be terminated by full performance, or by mutual agreement; the termination may come about by the death of one of the parties, or by a change in their legal status, or by destruction of the property.
" under CHAPTER IX
Definition. The term “sales" is in common use, in a technical sense, to cover sales of personal property. Where an agreement is made for the transfer of personal property from one party to another, the transaction may be a “sale”; it may be only a “contract to sell ”; or it may be a
contract for labor and materials.” The distinction is in many cases important. In the practical working of the Common Law, it has come about, with respect to sales or contracts to sell, that the law in different States varies appreciably. This may have been due to different business customs in different places, to a different point of view of the various courts as to what was right and just when the law took form, or in part to both causes. Whatever the explanation, the fact of difference is undisputed and is a serious handicap to the proper conduct of business.
Uniform Sales Act. Recently an important effort to improve the situation has resulted in what is known as “ The Uniform Sales Act" prepared for the purpose of securing uniformity of law in the various States. In 1913 it had been adopted in nine States, and in 1917 in twelve or more.
The following definitions are there given :
“A contract to sell goods is a contract whereby the seller agrees to transfer the property in goods to the buyer for a consideration called the price.
“A sale of goods is an agreement whereby the seller transfers the property in goods to the buyer for a consideration called the price.”
Distinction between Sales and Contracts to Sell. The important difference between a sale and a contract to sell is here outlined; it lies in the effect. A sale is substantially a conveyance; the buyer acquires title and the right to possession of the specific goods, sometimes even in the hands of a third party, and any subsequent gain, or loss, or risk, is the buyer's.
With a contract to sell, the buyer does not acquire the right to the specific goods; his remedy against the seller for non-delivery or non-compliance with the contract is confined to a suit for money damages in a court of Law; the risk is the seller's unless otherwise fixed by specific agreement. In some cases the right to the goods is the most important consideration;