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see that the terms of the contract were collected in which the general rule as complied with.5
to the nonliability of an employer for By Louisiana Civil Code (1838) $ the torts of an independent contractor 2739, (1888) 2768, it is provided that was held or assumed to be applicable "the undertaker is responsible for the as regards actions in which it is deeds of persons employed by him.” 6 sought to recover against principal
contractors for injuries caused by the $ 2. Liability of a contractor for the
acts of subcontractors. Some additorts of a subcontractor.
tional authorities illustrating this In § 5 of the monograph in 18 A.L.R. phase of the rule are cited in the footpp. 801 et seq., numerous cases are note.
5 McGrath v. St. Louis (1908) 215 the work, either resulting from the Mo, 191, 114 S. W. 611.
plan or its execution. On the other 6 The scope and effect of the pro- hand, in the eye of conscience, the vision was thus explained in Camp v. undertaker is the responsible man.” Church of St. Louis (1852) 7 La. Ann. In Beauchamp, Civil Code (Quebec) 321: "The article 666 provides that § 1696, will be found a list of the everyone is bound to keep his build- French authorities for the doctrine ings in repair, so that they neither that a servant is not liable personally fall, nor any part of the materials for his own negligence. composing them
the 1 Kilts v. Kent County (1910) 162 neighbors or passengers, under the Mich. 646, 127 N. W. 821 (defective penalty of all losses which may result scaffold); Ege v. Phønix Brick & from the neglect of the proprietor in Constr. Co. (1906) 118 Mo. App. 630, that respect. The owner of the build- 94 S. W. 999 (contractor employed to ing is answerable for the damage grade a street carried the material occasioned by its ruin, when this is excavated to another street, and decaused by neglect to repair, or when posited it so as to form an embankit is the result of a vice in its original ment in front of the plaintiff's premconstruction. Art. 2302. The damage ises); Manchester v. Warren (1893) caused is not always estimated at the 67 N. H. 482, 32 Atl. 763; Eccles v. exact value of the thing destroyed or Darragh (1880) 14 Jones & S. (N. Y.) injured; it may be reduced according 186 (briok fell on passer-by from to circumstances, if the owner of the building which was being wrecked by thing has exposed it imprudently. That a subcontractor); Haefelin v. McDonthese provisions are entirely inde- ald (1904) 96 App. Div. 213, 89 N. Y. pendent of the general rules concern- Supp. 395; Murphy v. New York ing the responsibilities of master and (1908) 128 App. Div. 463, 112 N. Y. employers, and not in any manner con- Supp. 807 (dynamite stored in street nected with their relations, is shown exploded and injured person in adjoinconclusively by their place in the ing building); Dorn v. Snare & T. Co. Code. These articles are in the same (1909; Sup. Ct. App. T.) 62 Misc. 269, chapter, and follow immediately that 114 N. Y. Supp. 820 (pedestrian inwhich provides for the latter, which jured by heavy object dropped from is numbered 2299. They are evidently bridge); New York v. Corn (1909) founded in an enlightened view of 133 App. Div. 1, 117 N. Y. Supp. 514
. public necessity. They protect the (temporary bridge over excavation in neighbor, the passenger in the street, sidewalk collapsed); Von Lengerke v. and it would be singular, indeed, if New York (1912) 150 App. Div. 98,
. the men at work at the building were 124 N. Y. Supp. 832, affirmed without excluded from their just and salutary opinion in (1914) 211 N. Y. 558, 105 operation. It seems to me obviously N. E. 1101 (property injured owing to to follow that the undertaker, who
manner in which tunnel for sewer conputs up, to the danger of the public, nections was excavated); Phillips v. a building defective in plan, materials, Roth (1914) 160 App. Div. 792, 145 or work, is equally liable, in principle, N. Y. Supp. 745 (passer-by injured by with the owner, for damage occasioned fall of scaffold used by workmen enby its falling down. Indeed, a stronger gaged in installing storm windows); moral responsibility exists on his part. Wray v. Evans (1876) 80 Pa. 102; The owner is rendered liable from the Bancroft v. Goodwin (1905) 41 Wash. policy of the law alone. He rarely 253, 83 Pac. 189 (goods of tenant damknows anything about the security of aged owing to removal of roof of
The exemption of a principal con- plained of involved the breach of a tractor from liability is, of course, non-delegable duty incumbent upon negatived wherever it appears that the the principal contractor with respect tort which caused the injury com- to the injured person. For a general building while it
was being the cases cited in which the employers modeled).
had been held liable for the torts of 2 In Baumeister v. Markham (1897) independent contractors with respect 101 Ky. 122, 72 Am. St. Rep. 397, 39 to inherently dangerous work, the S. W. 844, 41 S. W. 816, 2 Am. Neg. employers were either owners or Rep. 363, where a pedestrian was in- lessees of the property in question or jured by falling into an unguarded owned some special interest therein, opening in a sidewalk, the court said:
and that, while the rule which predi"Undoubtedly, where joint supervision
cated liability would apply under such and co-operation of the principal con- circumstances, because of the doctrine tractor of a building on a highway expressed in the maxim “no one shall and of his subcontractor of a portion use his own property in a manner that of it become necessary and are exer- will injure the person or property of cised, a joint obligation to the public
another," it would not hold in regard will exist, and joint liability be fixed
to a mere contractor who had sublet for personal injury to a stranger re- certain work to another contractor. sulting from an act done or duty omit
In the view of the learned judge the ted by the latter during prosecution
rule was based on the ground "that of the business. We think such is this
where one owes a duty to do a certain case. For, although the opening in
thing, it then becomes his further duty the sidewalk may have been actually
to so perform it as not to injure or caused by Merriweather or his serv
damage the person or property of anants, and he was for that reason other.” The learned judge proceeded bound, while doing his part of the
thus: “The contractors (defendant work, to use all necessary means to construction company) had, by the prevent injury thereby to others, still,
contract, agreed to perform certain as the remaining portion was under
work. It was their duty to the landcontrol, required presence of and had
owner to do it. By their contract they necessarily to be done by Baumeister
had sufficient possession and control & Brother concurrently and conjointly
of the property to carry on that work. with the brickwork devolved upon him, Their possession for that purpose was they were not released from their
no less complete than a lessee's posprimary duty to the public as prin- session of premises for the purposes cipal contractors, but bound to see to of the lease, and there are many reit the business was so done as not to hurt other persons.”
ported cases holding that a lessee will
be responsible when the injury, such In Schutte v. United Electric Co.
as occurred in this case, follows from (1902; Sup. Ct.) 68 N. J. L. 435, 53
the work, taking it out of the general Atl. 204, 12 Am. Neg. Rep. 522, where rule as to independent contractors. a building leased by one V. was burned Loth v. Columbia Theatre Co. (1906) by reason of the negligence of a sub- 197 Mo. 328, 94 S. W. 847. After decontractor employed by a company fendants had entered into a contract, which V. had engaged to install elec- and it became their duty to do this tric fixtures, it was observed that the excavating, no reason suggests itself principal contractor could not escape why they should owe any less degree liability to V. under its contract, “by of care to third persons than the proemploying another company to do the prietor of the land. The rule is based work, and thereby turn him over, with- upon the doctrine of due care, rather out his consent, to a party which might than on the ownership of the land or be irresponsible for the damages he premises." might sustain by breach of the con- For other cases in which the liabiltract he made with the [principality of the principal contractor was contractor].”
affirmed, see Maxwell v. British ThomIn Carson v. Blodgett Constr. Co. son Houston Co. (1902) 18 Times L. (1915) 189 Mo. App. 120, 174 S. W. R. (Eng.) 278—C. A. (traveler injured 447, Farrington, J., in his concurring by dangerous structure used in the opinion, expressed his disapproval of work of building a tramway); Young the argument of counsel that, in all v. Trapp (1904) 118 Ky. 813, 82 S. W.
discussion of the scope and effect of the theory as to duties of this description, the reader is referred to the following monographs: 23 A.L.R. pp. 984 et seq.; 23 A.L.R. pp. 1016 et seq.; 23 A.L.R. pp. 1084 et seq.; 25 A.L.R. pp. 426 et seq.; 28 A.L.R. pp. 122 et seq.; 29 A.L.R. pp. 736 et seq.
On the ground that a provision in a contract for municipal work, to the effect that it shall not be sublet, does not inure to the advantage of a stranger to the contract, it has been held that such a provision cannot be invoked as a reason for charging a principal contractor with liability for the negligence of a subcontractor or his servants.
The extent of a contractor's liability for injuries caused by defects in the product of a subcontractor's work, after it has been turned over to him, is determinable with reference to considerations similar to those which are controlling in cases where it is sought to charge a principal employer with responsibility in respect of the condition of the subject-matter of work performed under a contract made with himself. See monograph in 31 A.L.R. pp. 1029 et seq." § 3. Liability of a contractor for the
torts of an assignee of the contract. In a case where the injury complained of was caused by the negligence of the assignee of a municipal contract, one of the grounds upon 429 (brick fell on pedestrian from a building under construction); Ramsey v. National Contracting Co. (1900) 49 App. Div. 11, 63 N. Y. Supp. 286 (one of a number of rails not piled in the manner required by a municipal ordinance fell while a child was sitting on it); Ackles v. Pacific Bridge Co. (1913) 66 Or. 110, 133 Pac. 781 (excavation not guarded, as ordinance required).
3 Walters V. American Bridge Co. (1912) 234 Pa, 7, 82 Atl. 1103. The same position was taken in Ege v. Phænix Brick & Constr. Co. (1906) 118 Mo. App. 630, 94 S. W. 999.
*For cases in which the liability of a contractor was involved, see Lebanon Light, Heat & P. Co. v. Leop (1894) 139 Ind. 443, 29 L.R.A. 342, 39 N. E. 57, and Carey v. Courcelle
which it was sought to charge the as-
injuries sustained by his own
The question whether a servant of & contractor is entitled to maintain an action against him to recover for injuries received while the stipulated work was in course of performance is determinable with reference to the same principles as those which are controlling in respect of the liability of other classes of employers. See generally, Labatt on Master & Servant, vols. 3 to 5. The only particular phase of the subject to which, in the present connection, it may be advisable to draw attention, is that, in such an action, there is always a preliminary point to be settled, viz., whether the defendant is in fact an independent contractor, and that the right of recovery is, in the nature of the case, negatived if the evidence shows that he was merely a servant of the contractee, 1
In $8 5 to 21 of the monograph in 29 A.L.R. pp. 736 et seq., will be found (1865) 17 La. Ann. 108–cited in § 1, notes 4 and 6, of the monograph referred to.
1 Seattle Lighting Co. v. Hawley (1909) 54 Wash. 137, 103 Pac. 6.
1 For a case in which the contractor's liability was denied on this ground, see Callahan Constr. Co. v. Rayburn (1915) 110 Miss, 107, 69 So. 669.
For cases in which the nature of the relationship was one of the issues discussed, and the liability of the defendant was affirmed, see Grace & H. Co. v. Probst (1904) 208 Ill. 147, 70 N. E. 12; Dallontanio V. McCormick (1913) 29 Ont. L. Rep. 323, 14 D. L. R. 613 affirming (1912) 29 Ont. L. Rep. 319, 23 Ont. Week. Rep. 861, 8 D. L. R. 75.
a review of the decisions with regard is denied on the ground that the into the liability of a master for an in- jurious act of the contractor was coljury resulting from the negligence of lateral in its nature, has been thus a contractor in respect of work which stated : “When a person employs a involves the discharge of one of those contractor to do a work lawful in itspecific duties that are imposed upon self, and involving no injurious conthe master for the protection of his sequences to others, and damage arises servants.
to another party from the negligence II. Liability of contractor to third per.
of the contractor or his servants, the subject considered apart from contractor and not the employer is the effect of agreements creating spe- liable" 1 The rule thus stated is taken cific duties.
for granted in all the cases cited in SO 5. Application of general doctrine in 88 20 et seq., of the monograph in 18
cases where both the contractor and A.L.R. pp. 801 et seq. It was explicitthe employer are sued.
ly recognized in the cases cited in the The effect of the doctrine adverted footnote, as well as in many others to in § 1, supra, so far as regards cases which it would be superfluous to menin which the liability of the employer tion.2
1 Bower v. Peate (1876) L. R. 1 Q. 42 Am. St. Rep. 724, 38 N. E. 290; King B. Div. (Eng.) 321.
v. Livermore (1876) 9 Hun (N. Y.) 2 The Eugene F. Moran (1909) 212 298, affirmed in (1877) 71 N. Y. 605 U. S. 466, 53 L. ed. 600, 29 Sup. Ct. (subcontractor alone liable); Deyo v. Rep. 339; The R. B. Forbes (1856) 1 Kingston Consol. R. Co. (1904) 94 App. Sprague, 328, Fed. Cas. No. 11,598; Div. 578, 88 N. Y. Supp. 487; Sartirana The Belknap (1873) 2 Low. Dec. 281, v. New York County Nat. Bank (1910) Fed. Cas. No. 1,244; Northern Constr. 139 App. Div. 597, 124 N. Y. Supp. Co. v. Johnson (1918) 132 Ark. 528, 197; Thorn v. Clark (1919) 188 App. 201 S. W. 510; Houghton v. Loma Div. 411, 177 N. Y. Supp. 201; Smith Prieta Lumber Co. (1907) 152 Cal. v. South & Western R. Co. (1909) 151 500, 14 L.R.A. (N.S.) 913, 93 Pac. 82, N. C. 479, 66 S. E. 435; Painter v. 14 Ann. Cas. 1159; Hughes v. Harbor Pittsburgh (1863) 46 Pa. 213; Wray & S. Bldg. & Sav. Asso. (1909) 131 v. Evans (1876) 80 Pa. 103; Smith v. App. Div. 185, 115 N. Y. Supp. 320; Simmons (1883) 103 Pa. 32, 49 Am. Buckingham v. Commary-Peterson Co. Rep. 113; Susquehanna Depot v. Sim(1918) 39 Cal. App. 154, 178 Pac. 318; mons (1886) 112 Pa. 384, 56 Am. Rep. Jefferson v. Jameson & M. Co. (1896) 317, 5 Atl. 434; Sanford v. Pawtucket 165 Ill. 142, 46 N. E. 272; Hogan v. Street R. Co. (1896) 19 R. I. 537, 33 Chicago (1897) 168 Ill. 551, 48 N. E. L.R.A. 564, 35 Atl. 67; Read v. East 210; Murray v. Arthur (1901) 98 Ill. Providence Fire Dist. (1898) 20 R. I. App. 331; Louisville & N. R. Co. v. 574, 40 Atl. 760, 4 Am. Neg. Rep. 589; Smith (1909) 134 Ky. 47, 119 S. W. Morris v. Salt Lake City (1909) 35 241; Louisville R. Co. v. Wiggington Utah, 474, 101 Pac. 373; Bailey v. (1913) 156 Ky. 400, 161 S. W. 209; Troy & B. R. Co. (1884) 57 Vt. 252, 52 Camp v. Church of St. Louis (1852) Am. Rep. 129; Halifax Lordly 7 La. Ann. 321; Muldry v. Fromherz (1892) 20 Can. S. C. 505; M'Lean v. & Drennan (1917) 142 La. 1087, 78 So. Russell (1849) MacN. & Co. (1819) 11 126; Gilbert v. Halpin, 3 Ir. Jur. N. Sc. Sess. Cas. 2d series, 1035, (1850) S. 300; Gorham v. Gross (1878) 125 12 Sc. Sess. Cas. 2d series, 887, 22 Scot. Mass. 232, 28 Am. Rep. 224; Moore v. Jur. 394; Smith v. Ulen (1914) Sanborne (1853) 2 Mich. 519, 59 Am. Alberta, 28 West. L. Rep. 136, 6 Dec. 209; Fuller V. Grand Rapids West. Week. Rep. 678, 17 D. L. R. 400; (1895) 105 Mich. 529, 63 N. W. 530; Woodhill v. Great Western R. Co. Shute v. Princeton Twp. (1894) 58 (1855) 4 U. C. C. P. 449; Campbell v. Minn. 337, 59 N. W. 1050; Casey v. McGregor (1889) 29 N. B. 644. Wrought Iron Bridge Co. (1905) 114 In Hobbit v. London & N. W. R. Co. Mo. App. 47, 89 S. W. 330; Carter v. (1849) 4 Exch, 254, 154 Eng. Reprint, Berlin Mills Co. (1876) 58 N. H. 52, 42 1205, Rolfe, B., referring to the stateAm. Rep. 572; Mann v. Max (1919; ment of Littledale, J., in Laugher v. Err. & App.) 93 N. J. L. 191, 21 A.L.R. Pointer (1826) 5 Barn. & C. 558, 108 1227, 107 Atl. 417; Negus v. Becker Eng. Reprint, 204, that "the law does (1894) 143 N. Y. 303, 25 L.R.A. 667, not recognize a several liability in
On the other hand, the contractor is seq. The right of action in cases liable jointly with the principal em- of this class is, however, determinployer in cases belonging to the cate- able with reference to the qualifygories specified below. Only a few ing effect of the doctrine applied in precedents are cited under each para- those which are reviewed in § 12, note graph. The existence of a concurrent 1, infra. right of action against both parties is (b) Cases in which the tortious act either affirmed or taken for granted in in question was of such a nature as to all the cases discussed in the mono- involve the breach of a positive, nongraph referred to.
delegable duty incumbent upon the (a) Cases in which the injury com- principal employer.4 See monographs plained of resulted from the execution specified in § 4, supra. of the stipulated work in the manner (c) Cases in which the particular specified by the contract.3 See mono- act which caused the injury comgraph in 21 A.L.R. pp. 1229 et plained of was done in compliance two principals who are unconnected; Williams (1870) 29 Iowa, 210; Holmif they are jointly liable, you may sue quist v. C. L. Gray Constr. Co. (1915) either, but you cannot have two 169 Iowa, 502, 151 N. W. 828, 9 N. C. separately liable"-observed : “This C. A. 208; Probst v. Hinesley (1909) doctrine is one of general application, 133 Ky. 64, 117 S. W. 389 (for a deirrespective of the nature of the em- cision relating to a subsequent stage ployment, and, applying the principle of the proceedings which arose out of to the present case, it would be im- the same accident, see Bankers Surety possible to hold the present defend- Co. v. Jefferson Realty Co. (1911) 143 ants liable, without, at the same time, Ky. 549, 137 S. W. 224); Owens v. deciding that the contractors are not Georgia L. Ins. Co. (1915) 165 Ky. 507, liable, which it would be impossible. 177 S. W. 294; Gnau v. Ackerman to be contended."
(1915) 166 Ky. 263, 179 S. W. 217; 3 Lexington & E. R. Co. v. Breathitt Deford v. State (1869) 30 Md. 179; County Bd. of Edu. (1917) 176 Ky. 541, McCarthy v. Clark (1911) 115 Md. 195 S. W. 1094 (performance of work 454, 81 Atl. 12; Baltimore v. Leonard involved commission of trespass); (1917) 129 Md. 621, 99 Atl. 891; Jones Hanrahan v. Baltimore (1911) 114 Md. v. Boston (1905) 188 Mass. 53, 74 N. 517, 80 Atl. 312 (excavation of sewer E. 295; Stoliker v. Boston (1909) 204 trench in alley caused walls of build- Mass. 522, 90 N. E. 927; Ward v. Elying to crack and fall out of plumb); Walker Dry Goods Bldg. Co. (1913) Carson v. Blodgett Constr. Co. (1915) 248 Mo. 348, 45 L.R.A. (N.S.) 550, 154 189 Mo. App. 120, 174 S. W. 447. S. W. 478; Schlinski v. St. Joseph
* Dalton v. Angus (1881) L. R. 6 (1913) 170 Mo. App. 380, 156 S. W. App. Cas. 832, 50 L. J. Q. B. N. S. 689, 823; Taylor v. Walsh (1916) 193 Mo. 44 L. T. N. S. 844, 30 Week. Rep. 191, App. 516, 186 S. W. 527; Scott v. Cur46 J. P. 132, 10 Eng. Rul. Cas. 98— tis (1909) 195 N. Y. 424, 40 L.R.A. H. L.; Bower v. Peate (1876) L. R. 1 (N.S.) 1147, 133 Am. St. Rep. 811, 88 Q. B. Div. (Eng.) 321, 45 L. J. Q. B. N. E. 794, reversing (1908) 126 App. N. S. 446, 35 L. T. N. S. 321; Gray v. Div. 916, 110 N. Y. Supp. 1145; Wolf Pullen (1864) 5 Best. & S. 970, 122 v. Third Ave. R. Co. (1902) 67 App. Eng. Reprint, 1091, 34 L. J. Q. B. N. S. Div. 74 N. Y. Supp. 336; Duerr 265, 11 L. T. N. S. 569, 13 Week. Rep. v. Consolidated Gas Co. (1903) 86 257—Exch.; Jacob Doll & Sons v. Ri- App. Div. 14, 83 N. Y. Supp. 714; Godbetti (1913) 121 C. C. A. 621, 203 Fed. frey v. New York (1905) 104 App. Div. 593, 5 N. C. C. A. 1, certiorari denied 357, 93 N. Y. Supp. 899, affirmed within (1913) 229 U. S. 616, 57 L. ed. 1353, out opinion in (1906) 185 N. Y. 563, 77 33 Sup. Ct. Rep. 776; The Robert R. N. E. 1187; Warden v. New York (1918) 166 C. C. A. 365, 255 Fed. 37 (1908) 123 App. Div. 733, 108 N. Y. (contractual duty of employer and Supp. 305, affirmed without opinion in positive negligence of contractor); (1908) 193 N. Y. 669, 87 N. E. 1129; Green v. Berge (1894) 105 Cal. 52, 45 Hughes v. Harbor & S. Bldg. & Sav. Am. St. Rep. 25, 38 Pac. 539; District Asso. (1909) 131 App. Div. 185, 115 of Columbia V. Blackman (1908) 32 N. Y. Supp. 320; Dunlap v. Raleigh, App. D. C. 32; Girdzus v. Van Etten C. & S. R. Co. (1914) 167 N. C. 669, (1918) 211 Ill. App. 524; Rowell v. 83 S. E. 703, 7 N. C. C. A. 928; Free