Citation Numbers： 28 A.D. 37
Judges： Adams, Green
Filed Date： 7/1/1898
Status： Precedential
Modified Date： 10/28/2024
The appellant contends that the respondents were chargeable with negligence in the selection and employment of an incompetent contractor to perform the work required.
It is alleged in the complaint that Luther was then “ engaged in business as a practical carpenter, mason, and builder; ” but that he had no theoretical or practical knowledge of .building or mason work; that he possessed none of the experience, knowledge or qualifications necessary for a contractor to make the alterations provided for by the contract; that he was wholly without the information .usually possessed by contractors, builders and masons, and was wholly unfit and incompetent to enter into said contract, or to over
These allegations were not proven.
The evidence was insufficient to warrant the submission to the jury of the question of Luther’s incompetency as bearing on the question of the respondents’ negligence in employing him to do this work. Assuming that he was not a sufficiently skillful and. careful contractor, as it appears from subsequent occurrences, there was no evidence upon which to base a finding that'the respondents, or either of them, had knowledge of sxicli incompetency, or that they were negligent in failing to exercise due and reasonable care, under the circumstances, in ascertaining the fact. On the contrary, the appellant introduced in evidence the testimony of the respondent Thayer given before the coroner’s jury, from which it appears that Thayer made inquiries in regard to Luther, and was informed that he was competent to do the work; that a certain individual recommended him, and' the witness was satisfied that he was a capable contractor. Thayer also had written to his principals that the contractor was á reliable one to the best of his knowledge. The plan of the contemplated improvements required the approval of the bureau of buildings, and the respondents were warranted in believing that Luther was competent to carry out the work so approved, or they were not negligent in entertaining such belief. The circumstances, at least, do not warrant the imputation of negligence. Luther followed the vocation of a contractor, and the alteration and repair of buildings appear to have been within the scope of his business. He held himself out as able and competent to perform work of this character, and there is no proof that he was known or reputed to be incapable or incompetent for the purpose. So far as appears he was a building contractor in good standing in the community.
Under what circumstances may an employer be held liable upon the ground of. negligence in selecting an incompetent and reckless contractor ? What degree of care is required ? Is. knowledge of the incompetency essential ? If the person selected is following, for his vocation,-the particular employment and holds himself out as competent therein, and the employer has no knowledge of his incorn
An able and careful author on negligence makes this statement: “ Some of the judges, in their opinions, have qualified the rule (as to independent contractors) by assuming that it is only applicable to cases where the proprietor has not been guilty of negligence in awarding a contract to a person incompetent, habitually negligent, or otherwise unfit to be intrusted with it. No case has been found, however, where a proprietor has been held answerable for the negligence of an independent contractor upon this ground alone.” (2 Thomp. Neg. 908.)
In an action against the city of New York for damages caused by negligent blasting in excavating a street, the plaintiff offered to prove that the contractor who did the work “ was -notoriously incompetent and incapable to perform the work.” The offer was excluded, and the appellate court remarked that “the offer was not broad enough in offering merely the fact of the contractor being notoriously incompetent, without showing that the defendants had knowledge of such incompetency at the time of employment, or such facts as would show them guilty of negligence in making such contract. The corporation are not to be presumed to know more than other bodies corporate or individuals; and if they are sought to be held liable for employing improper persons to do the work of the public, it can only be' after knowledge of such in competency is shown.” Kelley v. Mayor, etc., of New York, 4 E. D. Smith, 291.)
This decision seems never to have been questioned or disapproved, in express terms, by any subsequent decision of the courts of this State. It was rendered subsequent to the decision in the same case reported in 11 New York, 432, and was not reversed thereby, as is erroneously stated in many of the books.
In Berg v. Parsons (84 Hun, 60) the action, was for damages caused by negligent blasting on defendant’s premises, resulting in injuries to plaintiff’s house. It appeared that the only steps taken by the defendant to ascertain the competency of the contractor was to inquire of a lawyer’s clerk; and he also claimed to have seen a piece of blasting done by the contractor which "Was reasonably well done. “ But from all information that the defendant got in respect to the
The case of Norwalk Gaslight Co. v. Borough, of Norwalk (63 Conn. 495) was also a case of negligent blasting. The court charged the jury that if the contractors were unskillful and incompetent to perform the work, and the defendant, knowing this, employed them, then the defendant would be liable for their negligence.
It was held that this charge was erroneous and imposed upon the defendant a too limited measure of liability; and that the defendant “ would be liable as. stated, not only in consequence of negligence,, which would certainly be most gross in knowingly employing incompetent contractors, but also in failing to exercise due and reasonable care to select such as were skillful and competent.”
As there is no evidence that the respondents did not exercise due ' and reasonable care in selecting the contractor, we are not called to declare what is, or should be deemed, the true principle of liability applicable to cases of this character. The fact that the contractor was negligent in respect of the work in question, afforded no presumption that the respondents were guilty of negligence in having employed him. The respondents had the right to place reliance upon the supposed qualifications and good character of the contractor, and were- not bound to anticipate misconduct on his part; so that, to make them responsible in this case, some participation in the particular acts through which the accident occurred must be brought home to them or some proof given that they negligently omitted to perform some legal duty owing to third persons, notwithstanding the existency of the contract.
The- appellant asserts that the respondents are chargeable with the consequences, upon the ground that Thayer personally supervised and controlled the work.
The general rule-is, that one who has contracted with a competent
The rule is thus well expressed by Sharswood, J., in Ardesco Oil Co. v. Gilson (63 Penn. St. 146): “ It may be considered as now settled that if a person employs others, not as'servants, but as mechanics or contractors, in an independent business, and they are of good character, if there was no want of due care in choosing them, he incurs no liability for injuries resulting to others from their negligence or want of skill.”
When a contractor takes entire control of the work, the employer not interfering, the employer — supposing there was no negligence in the selection of the contractor, and that the work contracted for was lawful-—is not liable to third persons for injuries to such parties by the contractor’s negligence, or the negligence of his subordinates. But any interference, assumption of control or directions given by the owners of buildings, being, erected for him by contractors, under a special agreement, may render him personally liable for injuries caused to third persons by the negligent conduct of such contractors, in work done in obedience to such directions. (Heffernan v. Benkard, 1 Robt. 432.) In other words, the employer may make himself liable by interfering with the contractor and assuming control of the work, or 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 the mere fact that the employer retains a general supervision over the work for the purpose of satisfying himself that the contractor carries out the' stipulations of his. contract, does not make him responsible for the negligence of the contractor. (2 Thomp. Neg. 913.)
If the injury occurred in consequence of the negligent or unskill ful performance of the work, the employer is not liable, provided he did not interfere with, and assume control of, and actually- control, the work and the method and means.of its performance. It is
This principle appears to receive recognition in Morton v. Thurber (85 N. Y. 550, 559), notwithstanding the last clause in the following quotation from the opinion of Rapallo, J., viz.: “ The only point made by the appellant in this branch of the case is that the rule that the owner of premises is not liable for the negligent conduct of a contractor is not applicable, for the reason that the defendants in person directed portions of the work, but the finding, in this respect, does not disclose the nature of these directions, or that they had any connection with the injuries sustained by the plaintiff; on the contrary, the referee found that these were inflicted without the fault and against the. wishes and advice of the defendants.”
The evidenced insufficient to warrant a submission to the jury of any question as to the respondents’ liability upon this ground.
There is no testimony that Thayer gave any directions as to how the ironwork or masonry work should be done, or about the removal of the wall between Hos. 8 and 10 Seneca street, or about the foundations of the iron columns. Indeed, it does not appear that he gave any directions whatever in respect of the methods of proceeding with the work, or that he exercised the right or power of directing and controlling the contractor as to the manner of its execution, or that any directions he may have given had any connection with the accident, or that the consequence was traceable to his interference.
No right of control or direction of the work was reserved by the the respondents in the contract. All that appears is, that Thayer was about, the building nearly every day and saw what was going on. Ho doubt he possessed a general knowledge as to building constructions, but he was not a builder and did not, apparently, possess such a theoretical or practical knowledge of the subject as would warrant his interference in directing the contractor in the method or mode of construction.
It is argued that the dangerous character of the mode of working was patent, and that Thayer must have been aware of it. If that were so, it would naturally be expected that he would have taken some means to prevent or avoid the catastrophe. Workmen of experience were engaged upon the work, and yet they made no complaint that the building was in danger of collapsing.
It is also contended that the respondents failed to file with the superintendent of buildings sufficient plans and specifications for the contemplated alterations or improvements, as required by section 292 of the city charter (Chap. 105, Laws of 1891), and the omission to do so is asserted as a basis of liability for the negligence of the contractor in the execution of the work. The charter provision relates to “ the construction or remodeling of any building,” and it is argued by the respondents that the alterations provided for in this-contract did not amount to “ a remodeling ” of the building, within the meaning of this requirement; that to remove a partition wall on the ground floor between two of the small stores on Seneca street and the rear wall’ on the same floor so as to open into the Main street store, was not a remodeling of this large building; that it is plans and specifications “ of such building ” which are required to be filed, and that requirement cannot be construed to apply to alterations' of the character described; that what thé statute covers is the original construction or reconstruction of an entire building, and that these improvements were properly described in the statement as “ alterations,” which statement was accepted hy the bureau, of buildings and a permit issued, after investigation and examination of the contemplated improvements by its officials.
It is not necessary, however, to determine whether these alterations constituted a remodeling of the building. A “ plan ” was filed with the bureau showing the walls tó be removed and the iron work to be substituted, giving dimensions and sizes. Full explanation of what was proposed to be done was made to the masonry and iron inspectors of the bureau, both of whom carefully examined the
It appears, moreover, that the accident happened, not because of any negligent defect or imperfection in the plan as approved, but because the plan as approved was disregarded. We do not understand the counsel for appellant to maintain that the cause of the accident was attributable to anything connected with the plan upon which the permit was granted. On the contrary, his complaint is that the notation made by the official building inspector upon the plan filed, viz., “ allow brickwork to carry I tons,” was wholly disregarded ; that the only plan that was used while the work , was in progress, was the one furnished by the Kellogg Iron Works, and that plan did not contain the words quoted ; that the duty rested upon the respondents to see that the building was constructed in accord
Luther undertook by his. contract to remove the wall and substitute iron columns to support the girders necessary to carry the wall above the ground floor. The obligation imposed upon him by his contract was to do the work properly and in accordance with the approved plan and the instructions given by the official inspectors. The wall fell because of the negligence of the contractor, or his sub-contractors, in the manner in which the work was done.
The iron columns were placed on plates resting on the center wall, instead of on piers or on a girder, which would distribute the weight or strain, and the shoring appears to have been prematurely removed. Negligence in doing the work caused the accident.
Appellant further contends that the failure of the respondents to employ an architect in connection with these alterations, as contemplated by the contract, was, taken in connection with all the other circumstances of the case, an element of negligence for the consideration of the jury.
' The contract provided that the work should be done to the satisfaction of Mr. Esenwein, architect; that no alteration should be made in the work shown or described by the drawings and specifications, except upon his written order, etc. This provision was disregarded, except in so far that the architect was engaged to pass upon the work when completed, and Thayer testified that he intended to have him in case of an emergency.
“ The proprietor usually retains control by a skilled architect, not for the purpose of controlling the contractor in his methods, but for the purpose of assuring himself that the results enumerated in the specifications of the contract are reached by the contractor, step by step, as the work progresses.” (2 Thomp. Neg. 914.)
There is no authority for the proposition that the employment of an architect to make plans and specifications for work of this character and to supervise the work in its progress to completion is a
In.this case, certainly, there can be no liability on any such ground, considering that the contract was made with a builder believed to be a competent and careful man; that the work was to be done according to a plan which had been examined and.approved by the bureau of buildings; that, had the work been done in accordance with the plan as approved by the official inspectors, there probably would have been no accident, and that the work when completed was to be approved by the architect. In view of these circumstances, we are unable to perceive that the non-employment of the architect was a contributing cause of the accident. The respondents relied to some extent, and were justified in relying, upon the presumption that the officers of the bureau would properly perform the duties imposed upon.'them by the charter and ordinance and the rules prescribed for their guidance.
It is asserted by appellant that Thayer was warned of the danger of proceeding without the advice of an architect, but the testimony as to this had no relation to these improvements and alterations.
From the views thus expressed, it folloxvs that we are of the opinion that the learned justice at Trial Term was justified in granting a nonsuit and in denying the motion for- a new trial on the minutes.
The judgment and order should be affirmed, with costs,
Hardin, P. J., and Follett, J., concurred; Adams and Ward, JJ., dissented.