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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." 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 g 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 may injure 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. Phænix 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 (brick 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 y. 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 contractor from liability is, of course, negatived wherever it appears that the tort which caused the injury combuilding while it being remodeled).

2 In Baumeister v. Markham (1897) 101 Ky. 122, 72 Am. St. Rep. 397, 39 S. W. 844, 41 S. W. 816, 2 Am. Neg. Rep. 363, where a pedestrian was injured by falling into an unguarded opening in a sidewalk, the court said: "Undoubtedly, where joint supervision and co-operation of the principal contractor of a building on a highway and of his subcontractor of a portion of it become necessary and are exercised, a joint obligation to the public will exist, and joint liability be fixed for personal injury to a stranger resulting from an act done or duty omitted by the latter during prosecution of the business. We think such is this case. For, although the opening in the sidewalk may have been actually caused by Merriweather or his servants, and he was for that reason bound, while doing his part of the work, to use all necessary means to prevent injury thereby to others, still, as the remaining portion was under control, required presence of and had necessarily to be done by Baumeister & Brother concurrently and conjointly with the brickwork devolved upon him, they were not released from their primary duty to the public as principal contractors, but bound to see to it the business was so done as not to hurt other persons.”

In Schutte v. United Electric Co. (1902; Sup. Ct.) 68 N. J. L. 435, 53 Atl. 204, 12 Am. Neg. Rep. 522, where a building leased by one V. was burned by reason of the negligence of a subcontractor employed by a company which V. had engaged to install electric fixtures, it was observed that the principal contractor could not escape liability to V. under its contract, “by employing another company to do the work, and thereby turn him over, without his consent, to a party which might be irresponsible for the damages he might sustain by breach of the contract he made with the (principal contractor)."

In Carson v. Blodgett Constr. Co. (1915) 189 Mo. App. 120, 174 S. W. 447, Farrington, J., in his concurring opinion, expressed his disapproval of the argument of counsel that, in all

plained of involved the breach of a non-delegable duty incumbent upon the principal contractor with respect to the injured person. For a general the cases cited in which the employers had been held liable for the torts of independent contractors with respect to inherently dangerous work, the

, employers were either owners or lessees of the property in question or owned some special interest therein, and that, while the rule which predicated liability would apply under such circumstances, because of the doctrine expressed in the maxim “no one shall use his own property in a manner that will injure the person or property of another," it would not hold in regard to a mere contractor who had sublet certain work to another contractor. In the view of the learned judge the rule was based on the ground “that where one owes a duty to do a certain thing, it then becomes his further duty to so perform it as not to injure or damage the person or property of another." The learned judge proceeded thus: “The contractors (defendant construction company) had, by the contract, agreed to perform certain work. It was their duty to the landowner to do it. By their contract they had sufficient possession and control of the property to carry on that work. Their possession for that purpose was no less complete than a lessee's possession of premises for the purposes of the lease, and there are many reported cases holding that a lessee will be responsible when the injury, such as occurred in this case, follows from the work, taking it out of the general rule as to independent contractors. Loth v. Columbia Theatre Co. (1906) 197 Mo. 328, 94 S. W. 847. After defendants had entered into a contract, and it became their duty to do this excavating, no reason suggests itself why they should owe any less degree of care to third persons than the proprietor of the land. The rule is based upon the doctrine of due care, rather than on the ownership of the land or premises."

For other cases in which the liability of the principal contractor was affirmed, see Maxwell v. British Thomson Houston Co. (1902) 18 Times L. R. (Eng.) 278–C. A. (traveler injured by dangerous structure used in the work of building a tramway); Young v. Trapp (1904) 118 Ky. 813, 82 S. W.


discussion of the scope and effect of which it was sought to charge the asthe theory as to duties of this descrip- signor with liability was that the astion, the reader is referred to the signment of the contract was prohibitfollowing monographs: 23 A.L.R. pp. ed by clauses in the city charter and in 984 et seq.; 23 A.L.R. pp. 1016 et seq.; the contract itself. But the court was 23 A.L.R. pp. 1084 et seq.; 25 A.L.R. of opinion that "both these provisions pp. 426 et seq.; 28 A.L.R. pp. 122 et were intended for the benefit of the seq.; 29 A.L.R. pp. 736 et seq.

city, and did not and could not change On the ground that a provision in a the legal relations existing between contract for municipal work, to the the contractor and his assignees.” 1 effect that it shall not be sublet, does

$ 4. Liability of contractor in respect of not inure to the advantage of a

injuries sustained by his oun stranger to the contract, it has been

ants, held that such a provision cannot be invoked as a reason for charging a

The question whether a servant of principal contractor with liability for

a contractor is entitled to maintain an the negligence of a subcontractor or

action against him to recover for inhis servants.

juries received while the stipulated The extent of a contractor's lia

work was in course of performance is

determinable with reference to the bility for injuries caused by defects in the product of a subcontractor's

same principles as those which are work, after it has been turned over to

controlling in respect of the liability

of other classes of employers. See genhim, is determinable with reference

erally, Labatt on Master & Servant, to considerations similar to those

vols. 3 to 5. The only particular phase which are controlling in cases where it is sought to charge a principal em

of the subject to which, in the present ployer with responsibility in respect

connection, it may be advisable to of the condition of the subject-matter

draw attention, is that, in such an ac

tion, there is always a preliminary of work performed under a contract made with himself. See monograph

point to be settled, viz., whether the in 31 A.L.R. pp. 1029 et seq.*

defendant is in fact an independent

contractor, and that the right of re$ 3. Liability of a contractor for the covery is, in the nature of the case, torts of an assignee of the contract.

negatived if the evidence shows that In a case where the injury com- he was merely a servant of the conplained of was caused by the negli- tractee." gence of the assignee of a municipal In $$ 5 to 21 of the monograph in contract, one of the grounds upon 29 A.L.R. pp. 736 et seq., will be found 429 (brick fell on pedestrian from a (1865) 17 La. Ann. 108-cited in § 1, building under construction); Ram- notes 4 and 6, of the monograph resey v. National Contracting Co. (1900) ferred to. 49 App. Div. 11, 63 N. Y. Supp. 286

1 Seattle Lighting Co. v. Hawley (one of a number of rails not piled

(1909) 54 Wash. 137, 103 Pac. 6. in the manner required by a municipal ordinance fell while a child was sit

1 For a case in which the contracting on it); Ackles v. Pacific Bridge

tor's liability was denied on this Co. (1913) 66 Or. 110, 133 Pac. 781

ground, see Callahan Constr. Co. v. (excavation not guarded, as ordinance

Rayburn (1915) 110 Miss, 107, 69 So.

669. required). 3 Walters V. American Bridge Co.

For cases in which the nature of (1912) 234 Pa. 7, 82 Atl. 1103. The

the relationship was one of the issues same position was taken in Ege v.

discussed, and the liability of the dePhenix Brick & Constr. Co. (1906)

fendant was affirmed, see Grace & H. 118 Mo. App. 630, 94 S. W. 999.

Co. Probst (1904) 208 Ili. 147, 70 * For cases in which the liability of N. E. 12; Dallontanio v. McCormick a contractor was involved, see Le- (1913) 29 Ont. L. Rep. 323, 14 D. L. banon Light, Heat & P. Co. v. Leop R. 613 affirming (1912) 29 Ont. L. (1894) 139 Ind. 443, 29 L.R.A. 342, 39 Rep. 319, 23 Ont. Week. Rep. 861, 8 N. E. 57, and Carey v. Courcelle D. L. R. 75.

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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" i The rule thus stated is taken cific duties,

for granted in all the cases cited in $ 5. Application of general doctrine in $$ 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. 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) 133 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. $. 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. 605, 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

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