Mayer v. Thompson-Hutchison BuildIng Co. , 104 Ala. 611 ( 1894 )

COLEMAN, J.

The Thompson-Hutchison Building Co., a corporation, contracted to erect a brick building in the city of Birmingham. Thompson, a corporator and president of the corporation, as its agent and officer, controlled and directed the workmen in its construction. A brick, either without the application of force, or by force, fell from the top of the wall, which, in falling, struck the plaintiff below on the head, and greatly injured him. Thompson was uot present when the injury occurred, and was not otherwise liable than as an agent or officer of the company in charge. The first count of the complaint charges, that the defendants “did erect and build a certain building * * * in so careless, negligent and improper a manner, that by reason thereof certain brick fell from said building,” &c. In the second count it is charged that the defendants “did erect and build a certain four story brick building, * * * * * to the height of sixty feet, without any scaffold barrier and safe-guard, to protect persons, * * * from brick falling from said building, when it was their duty to do so,” &c. The corporation and Thompson, and the other corporators were jointly sued. The jury, under the instruction of the court, returned a verdict against the corporation and in favor of Thompson. This statement of the case we deem sufficient, to bring up the material questions involved.

The first we will consider is, conceding that the facts tend to show negligence and a liability on the part of the contractor corporation, as averred in the complaint, is one who acts merely as an agent of the corporation, (though he may be also in fact an officer of the corporation) , in superintending and controlling the erection of the building for the contractor, jointly liable with the contractor in an action on the case for such negligence? If the proof had shown that the injury resulted from culpable negligence in the construction of the wall, the agent in control, by whose orders it was thus constructed, would be guilty of misfeasance, and jointly liable with the contractor. We think all the authorities are to this effect. The court instructed the jury to find the issue in favor of the defendant Thompson. We will first consider the correctness of this charge as applied to the first count. All the witnesses, who had knowledge of the facts, testified that the wall was constructed in a workmanlike manner, and these witnesses and others, who gave expert testimony, swore, that the bricks could not have fallen from any defect or imperfection in the wall or cornice. Nevertheless the bricks did fall. A person was seen standing at the top of the wall near the place from which they fell, and was heard to say “look out.” The evidence does not show who this person was, and it seems he was not discovered, or, if so, he was not examined. Precisely what caused the bricks to fall is not positively shown. The defendants contend that the person seen near the place, from where they fell, must have pushed them off the top of the wall. This may be true, and it may be that the weight of the evidence tends to this conclusion, but in the absence of some affirmative evidence that the bricks were pushed over, is not the admitted fact that the bricks fell, a circumstance or fact which the jury had the right to consider, in determining the weight and credibility of the defendants’ testimony,' that they could not have fallen without some external force? The general affirmative charge should not be given in any case, where there is conflict in the evidence as to material facts. We are of opinion the charge given was an invasion of the province of the jury. If the bricks were pushed over by some person, and did not fall in consequence of a defect in the wall, the defendants were not liable under the first count of the complaint. Thiso conclusion is based upon the assumption which we think clearly established in the present record, that the brick work on the wall had been completed, and that no person in the employ of the contractor, or under the control of Thompson, had any business at the time near the place of the wall from which the bricks fell. We think it clearly shown, that if an employe or laborer pushed the bricks over, after the completion of the wall, whether done intentionally or negligently, it was an act not within the scope of his employment, nor was it done in the performance of any duty. — Wood on Master and Servant, p. 535.

The second count charges the defendants with neglect in their failure or omission to erect scaffolds or guards, so as to prevent brick from falling to the ground. On this proposition the defendant, Thompson, invokes the doctrine that an agent or servant is not liable for a mere omission or non-feasance. The rule is stated as contended for in Story on Agency, § 308, and in Story on Contracts, § 171 ; and there are numerous decisions which fully sustain the text. There are courts of high authority which hold differently. Our attention has not been called to any decision of the question in this State, and in declaring the law which shall govern, we have carefully considered both lines of decisions.

The principle upon which the rule is founded, as declared by Story, is, that there is no privity between the servant or agent and third persons, but the privity exists only between him and the master or principal. This relation of privity is that from which arises the maxim respondeat superior. The liability of the principal or master to third persons does not depend upon any privity between him and such third persons. It is the privity between the master and servant that creates the liability of the master for injuries sustained by third persons on account of the misfeasance and non-feasance of the servant or agent. It is difficult to apply the same principles which govern in matters of contract between an agent and third persons to the torts of an agent which inflict injury on third persons, whether they be of misfeasance or non-feasance, or to give a sound reason, why a person, who, while acting as principal, would be individually liable to third persons for an omission of duty, becomes exempt from liability for the same omission of duty, because he was acting as servant or agent. The tort is none the less a tort to the third person, whether suffered from one acting as principal or agent, and his rights ought to be the same against the one whose neglect of duty has caused the injury. We think the better rule declared in Baird v. Shipman, 132 Ill. 16, (22 Amer. St. Rep. 504), in which it is held, that “an agent of the owner of property, who has the complete control and management of the premises, and who is bound to keep them in repair, is liable to third persons for injuries resulting to the latter, while using the premises in an ordinary and appropriate manner, through the neglect of such agent. And the agent can not excuse himself on the plea that his principal is liable. It is not his contract that exposes him to liability to third persons, but his common law'obligation to so use that which he controls as not to injure another.” See notes to this case in 22 Amer. St. Rep. 504, supra. In Ellis v. McNaughton, 76 Mich. 237, (15 Am. St. Rep. 308), we find this language : “Misfeasance may involve the omission to do something which ought to be done; as when an agent, engaged in the performance of his undertaking, omits to do something which it is his duty to do under the circumstances ; as that when he does not exercise that degree of care which due regard for the rights of others requires. ” In Campbell v. Portland Sugar Co., 62 Me. 552, (16 Amer. Rep. 503), it is said : “It is the actual personal negligence of the agents which constitutes the constructive negligence of the corporation. The corporation acts through and by them, and they act for the corporation, and when their acts or neglects result in injury to third persons, they are equally responsible with their principal.” The rule is broadly stated in 14 Amer. & Eng. Encyc. Law, 814. We might cite other decisions if deemed necessary. We hold, that the mere relation of agency does not exempt a person from liability for any injury to third persons resulting from his neglect of duty, for which he would otherwise be liable.

It is contended by the defendants, first, that they were under no duty to erect scaffolding or safeguards to prevent brick from falling ; and, second, that under the circumstances they had no right to do so. The first of these propositions is asserted under the evidence, to the effect that it is not customary to erect scaffolding on the outside of the wall, and that the wall may be built from the inside with safety. The facts will appear in the statement of the facts of the case. Our conclusion is that, for the purposes of this case, the defendants were as much bound to erect scaffolding or safeguards, as if the wall had been along the sidewalk of a public street of the city of Birmingham. If, in the course of the erection- of a brick wall along the sidewalk of a public street, the mason, being at work on the inside, should accidentally, or from want of skill, let slip from his hand a brick, or inadvertently cause one to topple down, and it should fall on the head of some person passing along the public sidewalk, where he had the right to be, there being no safeguard or precaution to avert such a possible result, the principal or person would be liable. In such a case the duty is so apparent, and the probable or possible danger so obvious, that no amount of testimony as to the usage or custom, or comparative safety, would excuse such culpable negligence.

It is next contended by the defendants, that it was impossible to erect a scaffold or safeguards without occupying the space between the wall under construction and the building next to it, or by using the windows of the adjacent building, and that they were positively prohibited from using either by the owners. We do not think this any excuse. The defendants were under no compulsion to erect the building. They should have provided for such contingencies in their contract. No man- can with impunity use his own property or exercise any supposed rights or privilege in such way as to endanger the lives of innocent persons, in the exercise of a public right and privilege. Pecuniary interest will not excuse.a nuisance which endangers public safety. It is unnecessary to cite authorities on this proposition.

The defendants, however, are not liable for any neglect of duty, unless such neglect was the proximate cause of the injury. So in this case, if the defendant had completed the brick wall, had ceased to work on it, and some person, even though an'employé, of his own accord, not acting under orders, nor within the scope of his duties, nor in furtherance of his employment, intentionally or recklessly or heedlessly pushed the brick from the wall, which fell and caused the injury, the act of such person, and not the neglect to provide safeguards, would be the proximate cause of the inj ury, and he alone would be responsible .

There is no count counting on a willful or intentional wrong, nor do we think the evidence in the record authorizes such an allegation.

The main question of inquiry may be stated as follows : Did the brick fall because of a defect in the construction of the wall or cornice? If so, the defendants are liable under the first count; otherwise they are not 'liable under this count. Was it from a want of skill, or of due care, or from heedlessness or recklessness on the part of some employé at the time engaged within the scope of his duties or employment, that caused the brick to fall, and not from a defect in the wall? If so, the defendants were liable under the second count of the complaint. On the other hand, were the bricks pushed off the wall by some employé, after the brick work of the wall had been completed in a proper and workmanlike manner, whose duties did not call him there, and who at the time was'not acting under proper orders, or within the scope of his duties, nor in furtherance of his master’s contract? If so, whatever may have been his motive or the inducement, the defendants are not liable. The duty to construct scaffolding in such a case is to afford security and protection, during the erection of the wall. If the-wall has been fully completed without injury, the failure to construct scaffolding can not be regarded as negligence proximately causing injury, if the injury was caused by the fall of a brick, intentionally or heedlessly pushed off the wall after its completion.

The sureties as such on the bond of the contractor are hot liable m this action, and the bond had no office to perform on the trial. We do not see that there was error in the admission of the record of the incorporation of the contractor, nor in the admission of the contract entered into for the construction of the building.

We do not think the court erred in refusing to allow the witness to answer the question, as to whether Davis, the brick mason, was paid by the day or by the thousand of bricks put in the wall. It is possible that a person who is paid by the number of bricks he may place, instead of by the day, maybe less careful in placing brick, but this fact is most too remote to be considered as tending to show that the wall was not properly, constructed.

Nearly all the assignments of error in both appeals, are based upon charges given and refused. We deem it unnecessary to mention them in detail, as the principles of law governing the case have been plainly stated. There was error in the instructions given on behalf of the plaintiff, and error in those given for the defendants.

Reversed and remanded on both appeals.