Denny v. City of Burlington , 155 N.C. 33 ( 1911 )

If we concede that the plaintiff has sufficiently alleged and shown that the death of Denny, plaintiff's intestate, was caused by a negligent or wrongful act of Russell and Harris, and that there is no evidence of assumption of risk or contributory negligence on the part of Denny, we are yet of the opinion that the charge of the court was right, in view of the evidence, even when construed and considered in its most favorable aspect for the plaintiff, which is the settled rule by which we must be governed in passing upon the correctness of such a peremptory instruction as that given in this case. The defendant, city of Burlington, wishing to construct a reservoir for municipal purposes, in connection with its system of sewerage, employed Russell and Harris to do the work under a written contract, not set out, as we deem it unnecessary to do so, which by its very terms constituted Russell and Harris independent contractors in their relation to the city, as much so as did the contract in Young v. Lumber Co., 147 N.C. 26, andGay v. Lumber Co., 148 N.C. 336. In the former case, Justice Connor quoted with approval the following definition of an independent contractor, taken from Craft v. Lumber Co., 132 N.C. 151: "When the contract is for something that may be lawfully done, and it (37) is proper in its terms, and there has been no negligence in selecting a suitable person in respect to it, and no general control is reserved, either in respect to the manner of doing the work or the agents to be employed in doing it, and the person for whom the work is to be done is interested only in the ultimate result of the work and not in the several steps as it progresses, the latter is not liable to third persons for the negligence of the contractor as his master." And inGay v. Lumber Co., supra, it is said that, "An independent contractor is one who undertakes to produce a given result, but so that in the actual execution of the work he is not under the order or control of the person for whom he does it, and may use his own discretion in things not specified," citing Pollock on Torts, 78; Barrow on Negligence, 160, and the Court also adopts the definition as given in Craft v. Lumber Co., and afterwards approved in Young v. Lumber Co., supra. The doctrine relating to the non-liability of a person who employs an independent contractor to do work for him and the limit to the exemption, is fully considered in the following cases, in addition to those already cited:Davis v. Summerfield, 133 N.C. 325; Midgette v. Mfg. Co., 150 N.C. 333;Hunter v. R. R., 152 N.C. 682; and it is exhaustively and learnedly discussed in two recent cases, Thomas v. Lumber Co., 153 N.C. 351 (opinion by Justice Manning), and Beal v. Fibre Co., 154 N.C. 147 (opinion by Justice Hoke). Reference to these cases will disclose that the subject has been considered by this Court in all of its essential features and varying phases. But to decide this case, we need only advert to the general principle, with its usual qualifications or exceptions, which are that the work must not be intrinsically dangerous (if this applies to a servant of a contractor and not merely to third persons, not interested in or connected with the work), and the employer must not retain control or supervision of the work. It would perhaps be more accurate to say that these requirements are rather a part of the definition than qualifications of it. We think the contract between the defendant and Russell and Harris, the contractors, was a perfectly lawful and proper one, and that the work was not intrinsically dangerous, so that the case is brought to the other test, whether the city reserved such control over the work in its several and (38) successive stages, as to create the relation of master and servant, as between it and Denny, and to deprive it, consequently, of any immunity from responsibility to the plaintiff for the value of his life, if his death was caused by its negligence or the negligence of any other person imputable to it. It will be well, therefore, to add to the citations from our own reports, two or three from other jurisdictions, where the law in respect to this particular branch of the rule has been aptly stated: "When one contracts to do and deliver certain specific work, which is not unlawful, and the manner of the doing of which, including the employment, payment and control of the labor, is left entirely to him, he is an independent contractor, for whose acts and omissions in the execution of such contract the other contracting party is not liable, since the doctrine of respondeat superior has no application where the employee represents the employer only as to the lawful purpose of the contract, but does not represent him in the means by which that purpose is to be accomplished." Roberdeaux v. Herbert, 118 La. 1089, 12 L.R.A. (N.S.), 632.

"The accepted doctrine is that, in cases where the essential object of an agreement is the performance of work, the relation of master and servant will not be predicated, as between the party for whose benefit the work is to be done and the party who is to do the work, unless the former has retained the right to exercise control over the latter in respect to the manner in which the work is to be executed." Richmond v. Sitterding (101 Va. 354), 65 L.R.A., 447, and notes.

"One who contracts to construct bridge abutments according to plans and specifications already prepared for one who has taken the contract for the construction of the bridge, is an independent contractor, for whose acts the employer is not responsible, although his agent exercises some kind of general supervision for the purpose of seeing that the work is done according to the contract." Salliotte v. Bridge Co., 58 C.C.A., 466; 65 L.R.A., 620.

We have carefully examined and analyzed the evidence in this case and can find, none legally sufficient to show that the defendant, at any time during the progress of the work, assumed control (39) thereof or of any part of it. There are to be found, to be sure, expressions from witnesses to the effect that Kueffner, the city engineer, was present now and then when the work was going on, but when the evidence touching upon this feature of the case is justly and properly considered, it amounts to no more than proof that he was there, in the interest of the city and under instructions from it, for the purpose of seeing that the work was done according to the contract, and not to give any instructions as to how it should be done or to supervise or control it. He made a suggestion, it is true, as to how some of it should be done, but it was not made while in the exercise of any power or control over those doing the work, and was merely the gratuitous expression of an opinion, which any outsider might have given, and it was entirely optional with Rodden, foreman of Russell and Harris, whether to adopt or accept this advice which related to the concrete work. Counsel for the plaintiff, in his able argument, relied on the authority of Lawson, 1 Rights, Remedies and Practice, sec. 299, where it is said: "The proprietor may make himself liable by retaining the right to direct and control the time and manner of executing the work or by interfering with the contractor and assuming control of the work, or of some part of it, so that the relation of master and servant arises, or so that an injury ensues which is traceable to his interference." But Lawson supplements that statement with these words, which more significantly and peculiarly apply to the facts of this case: "But merely taking steps to see that the contractor carries out his agreement, as, having the work supervised by an architect or superintendent, does not make the employer liable, nor does reserving the right to dismiss incompetent workmen." So it is said in the note to that section, that if the owner of a building deals with the contractors, with reference to the manner of doing the work, in such a way "that in doing any particular act they are obeying the directions of the owner, if that act is negligent and damage ensues, he is liable. In such a case, it is his duty to see that what is done under his special orders is not negligently done," citing Hefferman v. Benkard, 1 Robt., 436. But this record does not contain any evidence for the jury that the city, through its (40) engineer, assumed to control the work or any part of it, and that the intestate's death was caused thereby. The only supervision that the city retained was that required to protect its interests and insure a compliance with the contract in the completed work. This supervision was necessary, as a part of the work would be hidden when it was finished. The defendant's engineer was nothing more than an inspector, whose duty it was to inform his employee when there was any departure from the plans and specifications in doing the work. The right to control the work and direct how it should be done was vested in Russell and Harris, and none in the city. "The simple test is," says Mr. Wood, "who has the general control over the work? Who has the right to direct what shall be done, and how to do it? And if the person employed reserves this power to himself, his relation to his employer is independent, and he is a contractor; but if it is reserved to the employer or his agents, the relation is that of master and servant." Wood on Master and Servant, 614. Again it is said: "All authorities agree that the immunity of a contractee depends on his entire abstinence from control, and that if he personally interferes in the work and assumes control of it or of some part of it, and through such interference, whether as a direct result or as a consequence thereof, injury results to a servant, he is responsible. 2 Thompson on Negligence, 913, No. 40; Wood on Master and Servant, 837; Wharton on Negligence, secs. 186, 205; Cooley on Torts, 548; Gilbert v. Beach, 16 N.Y. 608;Hefferman v. Benkard, 1 Robt., 432." Applying these tests to our case, we must conclude upon the evidence, and as a necessary deduction therefrom, that there is no liability on the part of the city for the death of plaintiff's intestate, and this conclusion is supported by the following authorities: Nevins v. Peoria, 41 Ill. 505; Kelleher v. Mfg.Co., 122 Mass. 635. The case of Harrison v. Kiser, 79 Ga. 588, expressly holds that "the employer's agent may supervise the work, for the mere purpose of seeing that it is done in conformity with the contract, without rendering him liable." And it is also held in Bibbv. R. R., 87 Va. 711, that, "Where an employer selects with due care a competent contractor, and to him commits a (41) work that is lawful, and such as may be done without injury to third persons, and to be done in a workmanlike manner, at a stipulated price, such employer can not be held liable for injuries caused by the negligence of such contractor or his servants to third persons, not servants of such employer nor passengers on his cars. An independent contractor is one who renders service in the course of an occupation, and represents the will of his employer only as to the result of his work, and not as to the means whereby it is accomplished, and is usually paid by the job. The reservation to the employer of the privilege of inspecting and supervising the work of the contractor does not destroy or impair his character as an independent contractor. The rule ofrespondeat superior applies only to cases where the relation of master and servant exists, and does not apply as between an employer and the servants of an independent contractor. And the same is true of the rule of qui facit per alium, facit per se." In the recently published treatise upon this subject, this rule is stated: "A true test is said to be to ascertain whether the one rendering service to another does so in the course of an independent occupation, representing the employer's will only as to the result and not as to the means. In a recent Massachusetts case (Driscoll v. Towle, 181 Mass. 416), it is said: ``In such cases the party who employs the contractor indicates the work to be done and in that sense controls the servant, as he would control the contractor if he were present. But the person who receives such orders is not subject to the general orders of the party who gives them. He does his own business in his own way, and the orders which he receives simply point out to him the work which he or his master has undertaken to do. There is not that degree of intimacy and generality in the subjection of one to the other which is necessary in order to identify the two and to make the employer liable under the fiction that the act of the employed is his act." Moll on Independent Contractors and Employers' Liability, sec. 20.

There is no suggestion in the case, nor was there in the argument (42) before us, that Russell and Harris were incompetent, nor that the city was negligent in any way other than that already stated.

It should be remarked that the court did not nonsuit the plaintiff, but intimated merely that it would tell the jury that if they found the facts to be according to the testimony, their verdict should be for the defendant. There was uncontroverted evidence for the defendant that Keuffner was not authorized by the city to take any charge or control of the work or any part of it. A person who undertakes to act for another without any authority to do so can not generally render such other liable for his unauthorized torts unless his acts are ratified. This is a self-evident proposition. Gaslight Co. v. Norwalk, 63 Conn. 495. But, as we have shown, Keuffner did not interfere with the work in such a way as to charge his principal, even if he had authority to act for it. "The mere fact that a servant is sent to do work pointed out to him by a person who has made a bargain with his master does not make him that person's servant. More than that is necessary to take him out of the relation established by the only contract which he has made, and to make him a voluntary subject of a new sovereign — as the master sometimes was called in the old books." Driscoll v. Towle, supra.

In no reasonable view of the case was plaintiff entitled to recover of this defendant, and the charge of the court was, therefore, right.

No error.

Cited: Hopper v. Ordway, 157 N.C. 128; Johnson v. R. R., ibid., 383;Harmon v. Contracting Co., 159 N.C. 27; Embler v. Lumber Co., 167 N.C. 461;Dunlap v. R. R., ibid., 670; Gadsden v. Craft, 173 N.C. 420.

(43)