Cunningham v. Bay State Shoe & Leather Co.

Without considering whether the plaintiff had a right to be where he was when the accident happened, or whether the defendant owed him the duty of protecting him against falling into the pit of the elevator, we are of opinion that the convict, through whose negligence in leaving the elevator hole open and unguarded it is averred the accident to the plaintiff happened, was not the servant of the defendant and that the defendant is not liable for the convict’s negligence. The convict was undergoing a sentence upon a criminal conviction in the Kings county penitentiary, and was performing labor for the defendant by virtue of a contract made between the defendant and the county of Kings, by which the county let and *212farmed out to tbe defendant tbe labor and services of four hundred male convicts and fifty female convicts, confined or imprisoned in the said penitentiary, for a price per day specified in the contract for the labor of each convict. Personal control of the convicts by the keeper of the penitentiary was preserved by the contract. Indeed such control could not be lawfully transferred or delegated to any person. The statute which authorized the making of the contract conferred no such power. Clearly the relation of master and servant between the defendant and the convict could not arise out of such a contract.

While it is not necessary to constitute that relation that there should be a formal hiring by the defendant of the convict, yet such relation cannot exist unless the person who performs the service is subject to the control and direction of the person for whom the service is performed. In the instance before us such is not the case. On the contrary, the county of Kings, acting under legislative authority, made the contract referred to for the two-fold object of enforcing the salutary discipline of the convicts, and obtaining recompense for their maintenance. The defendant merely assisted the public authorities in the accomplishment of those objects. It became entitled to the use of the building in which the convicts worked, and to their labor only by virtue of that contract. That building was a part of the penitentiary. The defendant neither employed or selected the convict, nor had it power to enforce obedience from him or to discharge him.

The judgment must be reversed and a new trial granted, with costs to abide the event.

Judgment and order denying new trial reversed, and new trial granted, costs to abide event.