JOHN CONNOLLY, Appellee, vs. THE PEOPLE'S GAS LIGHT AND COKE COMPANY, Appellant.

Opinion filed October 28, 1913.

I. MASTER ANd servant-relation does not exist unless power to discharge exists. The relation of master and servant does not exist unless the person sought to be held as the master has the control of the alleged servant, which involves the power to discharge, and hence the relation does not exist unless the power to discharge exists.

2. SAME what does not make an employee the servant of his employer's customer. A servant sent to do work which his employer has agreed to perform for a customer does not become the servant of the customer merely by having the work pointed out to him and doing it.

3. SAME-what provisions of a contract do not make customer the master of other party's teamsters. Provisions in a contract between a gas company and a person who has agreed to do the company's hauling that the drivers furnished shall be satisfactory to the company and the teaming be done in accordance with the direction of the company's superintendent, are nothing more than an agreement that the work shall be satisfactorily done, and do not make the teamsters the servants of the company in doing the hauling.

4. SAME when teamster is not a volunteer under the direction of the party for whom the hauling is done. A teamster sent by his employer to do hauling which the employer has agreed to do for a customer is not a volunteer, in the sense that the acceptance of his services by the customer renders him the servant of the customer the same as though working for hire.

5. SAME when gas company is not liable for injury caused by teamster. Where a teamster sent by his employer to do hauling which the employer has agreed to do for a gas company, hauls a load of gas pipe to the place directed by the company, and, after unloading it in the street near the opening of a tunnel, stumbles and knocks a piece of gas pipe into the tunnel while on his way to attend to one of his horses, the gas company cannot be held liable for an injury inflicted by the falling pipe on a man working near the mouth of the tunnel.

6. SAME when question of relation of the parties is to be determined by terms of the contract. Where a person has a written contract to do the hauling and teaming for a customer the rela

tion in which the teamsters furnished by such person stand to the customer is to be determined from the terms of the written contract, and the construction of the contract is a matter of law for the court and not for the jury.

APPEAL from the Appellate Court for the First District;-heard in that court on appeal from the Circuit Court of Cook county; the Hon. E. M. MANGAN, Judge, presiding.

SEARS, MEAGHER & WHITNEY, (JAMES F. Meagher, and EDWIN HEDRICK, JR., of counsel,) for appellant.

B. J. WELLMAN, for appellee.

Mr. JUSTICE CARTWRIGHT delivered the opinion of the

court:

This is an appeal granted by the Appellate Court for the First District, in pursuance of a certificate of importance, from a judgment of that court affirming a judgment of the circuit court of Cook county in favor of John Connolly, appellee, against the People's Gas Light and Coke Company, appellant, for damages resulting from a gas pipe falling into a tunnel and striking appellee.

The suit was brought against the People's Gas Light and Coke Company and Leo Smith, and the statement of the Appellate Court that it was brought against that company and one Hartwell, and that the suit against Hartwell was dismissed, is a mistake. The suit was dismissed as to the defendant Leo Smith, but the declaration was not amended and still charged the two defendants jointly. There was a trial by jury and a verdict finding the remaining defendant guilty and assessing the plaintiff's damages at $2854. The defendant moved for a new trial and the plaintiff remitted the sum of $1854, which was practically two-thirds of the verdict, whereupon the motion for a new trial was denied and judgment was rendered for $1000.

There were two counts in the declaration, and in each it was alleged that the plaintiff was an employee of the Great Lakes Dredge and Dock Company and worked near the bottom of the mouth of the VanBuren street tunnel, in Chicago. The charge in the first count was, that the defendants negligently allowed and permitted an iron gas pipe to fall down into the tunnel, striking the plaintiff; and the second count alleged that the defendants negligently piled a great pile of iron gas pipe fifteen inches from the edge of the tunnel, and because of said negligence a piece thereof was caused to roll and fall off the edge and down into the tunnel and strike the plaintiff. At the close of the evidence the defendants moved the court to direct a verdict of not guilty, and the motion was denied.

There was no difference between the witnesses as to the facts except as to the precise distance of the gas pipe from the tunnel, and that was immaterial. The defendant gas light company was engaged, among other things, in putting in gas fixtures and gas stoves and ovens in buildings in Chicago. F. G. Hartwell did all the teaming and hauling for the defendant under a written contract running for five years, at certain fixed prices per month for double teams, single teams, horses and buggies, and reserve horses, respectively. The contract contained an agreement that the drivers of the teams should be satisfactory to the defendant; that the teaming should be done in accordance with the directions of such of defendant's superintendents as it might designate, and that the employees of Hartwell should be satisfactory to the superintendents and officers of the defendant at all times and in all respects. The defendant, for the purpose of putting in a gas stove in the building at 233 Market street, ordered some pieces of gas pipe hauled to that place. Leo Smith was one of Hartwell's drivers, and he was directed by the barn boss to go to the defendant's office or yards to do the hauling. Smith went with a horse and wagon in pursuance of that order and took on his

wagon a number of pieces of gas pipe. Charles Dawson was a gas-fitter employed by the defendant to do the work. He rode with Smith to the rear of the building at 233 Market street. Back of the building there was a paved alley twenty-five feet wide, and Smith drove into that alley at the south end, turned his horse around, facing south, and stopped the wagon four or five feet from the Van Buren street tunnel, near its east entrance, where it disappears beneath the surface of the ground. When Smith reached the place where the job was to be done, he took the pieces of pipe, eight or ten in number, from the wagon and laid them on the pavement between the wagon and an iron post supporting the railing along the edge of the tunnel. The evidence for the defendant was that the pipe was laid against the wheel of the wagon, several feet from the tunnel, and the declaration alleged that it was fifteen inches from the edge of the tunnel. One witness for the plaintiff testified that the pipe was lying against the iron post connected with the rail at the edge of the tunnel. Market street and the alley run north and south and VanBuren street runs east and west. The tunnel runs east and west across the alley. Whatever the distance, all the evidence showed that the pipe was laid between the wagon wheel and the iron post. There was a vise in the rear end of the wagon, used by the gas-fitter in preparing the pipe, and he went up-stairs in the building and made an examination and commenced cutting the pipe and cutting threads on it. When he would get one pipe cut and threaded he would go up-stairs and put it in, and Smith stood around watching him and waiting until that job was completed to go to some other place or to do some other hauling. While the horse and wagon were standing there the fly-net caught in the breeching and was tickling the horse, and he commenced to kick. Smith started toward the horse to fix the net before some damage was done, and in doing so he slipped and stumbled and fell. His foot struck a piece of the pipe three feet long and three

quarters of an inch in diameter and kicked or knocked it over into the tunnel, where it fell on the plaintiff. Smith always unloaded the material, and he laid it on the pavement without any suggestion or direction from Dawson. There was evidence that the alley sloped from the iron post toward the center slightly and was three inches lower at the center than at the sides, although it appeared to one of the witnesses to be level. Dawson did not lay on the pavement the pipe that fell on the plaintiff.

The Appellate Court in the opinion filed took the view that Smith, in all that he did, was doing the work of Hartwell and was Hartwell's servant and not the servant of the defendant, and that conclusion was unquestionably right. It is true that a person who is in the general employment of one person may with his consent be transferred to another for some particular work, in such a way as to become the servant, for the time being, of the other in doing that work, but a servant who is sent to do work which his master has agreed to perform does not become the servant of the one for whom the work is performed by having the work pointed out to him. He is the master who has the choice, control and direction of the servant, and it was held in Pioneer Fireproof Construction Co. v. Hansen, 176 Ill. 100, that the right to control involves the power to discharge, and that the relation of master and servant will not exist unless the power to discharge exists. In Harding v. St. Louis Stock Yards, 242 Ill. 444, the statement that the relation of master and servant does not exist unless the power to discharge exists was repeated, and the court approved the decision in Driscoll v. Towle, 181 Mass. 416, where the conditions were practically the same as in this case, and where the driver had been hauling property for an electric lighting company and sometimes gave help outside of driving his wagon. There was no possible ground upon which Smith could be said to be the servant of the defendant in going to his horse to adjust the fly-net and prevent some damage