Cole v. Lippitt

The plaintiff brings this action against the owner, builders, and supervising architect of a house for negligence in its construction, whereby the decedent lost his life. The declaration has two counts, and the defendants severally demur upon the ground that they are improperly joined as defendants in the same action, because the declaration sets out several and distinct, and not joint, breaches of duty and causes of action.

The first count sets out a joint and common undertaking to build the house, and a joint and common hiring of the decedent, Pierce. It is not, therefore, objectionable on the ground set forth in the demurrer.

The second count sets out the contractual relations existing between the defendants, the different parts which each of them took in the work of construction, the consequent duty to the workman, the breach thereof by the several parties defendant, and the resulting death of Pierce. Without reciting the long count, it shows that Lippitt was the owner of the estate, who made a contract with Maguire and Penniman for a part of the construction of the house, and employed Robertson to supervise the work, and that Pierce was employed by a Maguire and Penniman; that in the course of the work a part of a tower fell upon Pierce and killed him.

The negligence charged against Lippitt is that he caused the erection of the house upon improper plans, which provided for a tower with an overhanging battlement without proper support, and also provided for bricks and mortar of a kind too hard to form a strong bond, etc.

The negligence charged against Robertson is that he caused the erection of the house under improper plans, and the negligence charged against Maguire and Penniman is that they did not use reasonable care in construction, and failed to counterbalance and anchor the walls; also, that they built the battlement in too short a time for the mortar to set and harden.

These several charges of negligence are quite different in kind and relation, but the plaintiff claims that they constitute a joint liability, because the negligence of each defendant combined with others to produce the injury. This, however, is not enough to make a joint tort. As stated in Bennett v. Fifield,13 R.I. 139, parties cannot be declared against jointly where there is no community of wrong-doing, even though the tort of one might be such that, without it, the neglect of duty charged upon the other would not have followed. A similar statement is made in Sellickv. Hall, 47 Conn. 260, 274, that it is not enough to make torts joint that the acts constituting them stand in juxtaposition in time and place. "There must be a oneness of act." The fact that the effects of several wrongful acts are produced at the same time and place cannot affect the question. In Doremus v. Root, 94 Fed. Rep. 760, it was held that although a master and his servant through whose negligence another is injured may each be liable for such injury, their obligations rest upon different grounds, and they cannot be held jointly liable.

The second count of this declaration before us clearly states "three different cases, against three different defendants, for three different causes of action." Lippitt is charged with furnishing improper plans; Robertson with improper supervision; and Maguire and Penniman with improper work. These three grounds of liability are quite distinct. There is no common legal relation between them with respect to the plaintiff. Of course it may be said that if there had not been improper plans or improper supervision or improper work, there would have been no injury; but that does not make the three things a joint act. Evidently Maguire and Penniman had nothing to do with procuring the plans, nor Lippitt with the doing of their work. A resulting liability on the part of the owner, arising from a right of supervision of the work, does not make an act of the builders his act. Both may be liable and yet not jointly liable, because the cause of action against each is different from the other. Between Pierce and the builders there was a contractual relation of master and servant, but none between him and the owner, unless the builders are treated as his agents, and none whatever between Pierce and Robertson. We think, therefore, that the count is clearly bad.

The plaintiff, conceding that separate defendants cannot be sued jointly for distinct causes of action, cites cases to show the liability of each upon the grounds charged against them in this count, and from such liability he claims a joint right of action. But he shows no authority for such a claim. With two exceptions, all the cases which he cites are suits against a single defendant to establish his sole liability. The two exceptions are Klander v. McGrath, 35 Pa. St. 128, and Hawkesworth v. Thompson, 98 Mass. 77. In both these cases the court found a joint tort as a fact. The former case was for the fall of a dilapidated party-wall, and both owners were sued for a joint negligence in letting it stand. In the latter case the court found the fact of common direction in the work, and on this ground distinguished the case from Parsons v. Winchell, 5 Cush. 592, which held that a master and servant are not jointly liable for the servant's negligence. A joint liability is not made out by patching together individual liabilities which may arise from different relations to the same transaction.

The demurrers to the second count are sustained.