Alexander v. Mandeville , 1889 Ill. App. LEXIS 461 ( 1889 )

Cart, P. •!.

The appellant and Mrs. Leiter owned buildings in the city of Chicago, separated by a party wall. They joined in erecting another story upon them, and employed Mr. Baumann as architect. He made plans, and Barney & Bodatz, a firm of masons, contracted with the owners, separately, to do the mason work on the buildings, furnishing their own materials and labor, to be paid therefor the cost, with ten per cent, added. The owners, by their agents, employed their own carpenters, superintended by their own foreman, to do the necessary carpenter work.

Barney & Bodatz had their own foreman on the work, under whose directions their men worked when Bodatz was not present. Barney took no part in the work, only going to it on pay days, to pay the men. The architect, by his plans and verbal instructions, directed what work should be done, and decided upon its sufficiency as done. In the afternoon of April 20, 1886, a mason’s “horse,” used for scaffolding, placed on the roof of appellant’s building by Barney & Bodatz, from a cause not shown by any direct evidence, fell from the roof to the sidewalk in front of the building, striking and injuring the appellee.

He sued both owners and the masons. On the trial the appellee obtained a verdict against the appellant only. It is not now necessary to decide whether the relations between the appellant and the masons were such as to make him responsible for negligence of their workmen, if such negligence was the cause of the accident. If the masons had been contractors for a fixed price, it would be difficult to fix responsibility upon the appellant under all modern authority.

The principle adopted in the old case of Bush v. Steinman, 1 Bos. & Pul. 401, that “he who has work going on for his benefit and on his own premises, must be civilly answerable for the acts of those he employs,” has, in its application to the acts of independent contractors, been rejected, probably, by every court that has mentioned the case in the last half century. And that the contractors are paid cost and a per cent instead of a fixed price, makes no difference. Hale v. Johnson, 80 Ill. 185. There was evidence tending to show that there were upon the roof, when the “ horse ” went over, a carpenter, a laborer of the masons, and some telephone men doing something about wires which had been extended across, but not attached to, the appellant’s building. There was a good deal of incompetent evidence as to the acts and declaration of divers persons after the accident, tending to show, and probably fairly showing, that the general opinion of all persons most nearly connected with the events was that the act of the laborer was the cause of the “horse” falling.

The appellant was a non-resident, not present during the progress of the work, or at the time of, or after the accident He is not to be affected by that opinion, but is entitled to an impartial finding of a jury upon original evidence of the events.

That incompetent evidence, however, is not made the subject of exception by the appellant, and its admission can not be assigned as error. It is alluded to only as indicating that the importance of the instruction asked by the appellant and refused by the court was obscured by the general belief that the laborer was the negligent person. That instruction was as follows: “ If the jury believe from the evidence that the injury to the plaintiff, complained of here, was caused by the act or negligence of certain man or men in removing or changing the position of certain telephone or telegraph wires, and that such man or men was not, or were not, the agent or agents of the defendant, Alexander, or in his employ or service in doing such work, then the jury should not find a verdict against Alexander, but should find him not guilty.”

The refusal can not be justified on the ground that there was no evidence to base it upon. The telephone men were not witnesses, and the laborer was not examined on the point of what caused the horse to fall. Why it fell is left wholly to inference from circumstances. The laborer was removing scaffolding which was in part supported by the “ horse.” What the telephone men were doing does not so clearly appear.

The burden of proof was upon the appellee. If the jury were to infer from the presence and employment of different men what act caused the “ horse ” to fall, and if for the acts of one set of men the appellant was in no event answerable, he was entitled to an instruction covering the point. See Riedle v. Mulhausen, 20 Ill. App. 68, and many cases there cited; especially P. M. & F. Ins. Co. v. Anapow, 45 Ill. 86, and Wooters v. King, 54 Ill. 343.

The court gave no instructions asked by any of the parties. If any other party than the appellant asked any, the record does not show it. But if they did, one connected charge, as was given in this case, in lieu of separate instructions asked by the parties, is good practice, provided that such charge embraces all that the parties ask, to which they are entitled. Hanchett v. Kimbark, 118 Ill. 121. So much of the charges as relates to the present question is as follows:

“ If you find from the evidence that none of the defendants were personally guilty of negligence, but that some of the workmen on the building, while in the scope of their employment, were guilty of negligence, as charged in the declaration, and that such negligence caused the accident, and that such workmen were employes of either of the defendants, then you will determine” from the evidence whether such workmen were the employes or servants of the owners of the buildings or the employes and servants of Barney & Bodatz. This involves the question whether Barney & Bodatz were doing the work on these buildings as independent contractors having sole charge of the mason work, and the sole right to hire and discharge the workmen engaged thereon, or whether they were simply acting as superintendents for the owners, and were themselves simply such employes or servants of the owners. Upon this point you are instructed, as a matter of law, that one who contracts to do a piece of work, and to furnish his own assistants, and to execute the work either entirely according to his own ideas, or in accordance with the plans previously furnished him by the person for whom the work is to be done, and without being subject to the orders of the person for whom the work is done, in respect of the details or manner of doing the work and having the sole right to hire and discharge assistants, such a person is a contractor, and not a servant or an employe.

“ On the other hand, if the person for whom the work is dene has a right to direct the details or manner of doing the work, from time to time, and to say who shall and who shall not work on the job, then the person for whom the work is done must be regarded as the employer, and those doing the work as his employes, and in that case it is immaterial whether the person for whom the work is done actually exercises the right to direct the details or manner of doing the work or not; nor will it in that case make any difference whether he actually interferes in the hiring or discharging of men or not; it is sufficient if he had the right to do it.

“ Therefore, in this case, if you find from the evidence that such workmen or persons causing the accident were not guilty of negligence, or if guilty of negligence that they were not the employes of any of the defendants in this case, then you will find all defendants not guilty. If, however, you find from the evideuce that such workmen were guilty of negligence, that this negligence caused the accident, and that such workmen were the servants or employes of Barney & Rodatz, acting in the line of their employment, then you will find the defendants Alexander and Mrs. Leiter not guilty, and return a verdict of guilty as to Barney & Rodatz.

“ On the other hand, if you find, from the evidence, that such workmen were guilty of negligence, that such negligence caused the accident, and that such workmen were, at the time of the accident, the employes of the owner or owners of the buildings, acting in the line of their employment—that is, that the owner or owners had the right to direct the manner of doing the work, and to say who should and who should not work on the job, then you will return a verdict of not guilty as to Barney & Rodatz; and, in that case, you will further determine from the evidence whether the defendants, Alexander and Mrs. Leiter, through their agents, were doing the work jointly—that is, in so far as the control of the employes was concerned—and whether such workmen at the time of the accident, were the employes of them both, to the extent of being under their control, and, if you so find, then you will return a verdict of guilty as to both Alexander and Mrs. Leiter.

“ If, however, you find from the evidence that they were doing the work separately, and that neither had any control over the workmen engaged on the building of the other, and that said workmen were at the time of the accident the employes of Alexander alone, then you will return a verdict of not guilty as to Mrs. Leiter, and a verdict of guilty as to Alexander.”

This charge does not, in terms, assume that it was thelaborer who caused the “horse” to fall, and though,as a legal proposition, as it would be understood by lawyers (Nichols v. Mercer, 44 Ill. 250), a phrase or two in it would cover the point in the refused instruction, it was certainly liable to be misunderstood by the jury. It begins with the idea that “ wmrkmen on the building” caused the accident, and carefully informs the jury how they are to determine -whether those workmen were employed by the owners or the masons, and in no way alludes to the telephone men. By the whole tenor of the charge, the jury would be led to think only of the men employed in making the addition to the building, and of the relations of the several defendants in the suit to those men. It directed their attention away from the issue the appellant had a right to present. Trustees v. McCormick, 41 Ill. 323.

The refused instruction was not objectionable on the score that it was based upon an isolated fact. If that fact were found by the jury it would be a complete defense in itself, not subject to any qualifications by anything else in the case. As the judgment must be reversed for refusing this instruction, without putting the same matter clearly before the jury in any other shape, the evidence has not been reviewed at the length that would be necessary if the decision was based upon it. The same may be said of some other complaints of the appellant.

Rodatz was permitted to testify, over the exception of the appellant, that “ he hired the men to work for Leiter and Alexander;” that he lC had no control of anything.” These were only his conclusions. His testimony should have been confined to a narrative of what happened in the making of his contracts, and the conduct of the work, from which the jury were to draw their conclusions.

Whether the evidence as to the extent of the injury to the appellee justifies the damages for which judgment was rendered is a point not considered.

On the point of practice, that the appellant was not permitted to examine at length, as his own witness, a witness whom the appellee had put upon the stand and examined as to the same matter, and whom the appellant had then the opportunity to cross-examine as to every circumstance, the course adopted by the Superior Court was correct.

Additions to, and explanations or qualifications of, the testimony in chief, when part of the same transaction, are to be brought out by a cross-examination.

The judgment is reversed and the cause remanded.

Reversed cmd remancled.