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see that the terms of the contract were complied with.5

By Louisiana Civil Code (1838) § 2739, (1888) 2768, it is provided that "the undertaker is responsible for the deeds of persons employed by him." "

$2. Liability of a contractor for the torts of a subcontractor.

In § 5 of the monograph in 18 A.L.R. pp. 801 et seq., numerous cases are

'McGrath v. St. Louis (1908) 215 Mo. 191, 114 S. W. 611.

The scope and effect of the provision was thus explained in Camp v. Church of St. Louis (1852) 7 La. Ann. 321: "The article 666 provides that everyone is bound to keep his buildings in repair, so that they neither fall, nor any part of the materials composing them may injure the neighbors or passengers, under the penalty of all losses which may result from the neglect of the proprietor in that respect. The owner of the building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair, or when it is the result of a vice in its original construction. Art. 2302. The damage caused is not always estimated at the exact value of the thing destroyed or injured; it may be reduced according to circumstances, if the owner of the thing has exposed it imprudently. That these provisions are entirely independent of the general rules concerning the responsibilities of master and employers, and not in any manner connected with their relations, is shown conclusively by their place in the Code. These articles are in the same chapter, and follow immediately that which provides for the latter, which is numbered 2299. They are evidently founded in an enlightened view of public necessity. They protect the neighbor, the passenger in the street, and it would be singular, indeed, if the men at work at the building were excluded from their just and salutary operation. It seems to me obviously to follow that the undertaker, who puts up, to the danger of the public, a building defective in plan, materials, or work, is equally liable, in principle, with the owner, for damage occasioned by its falling down. Indeed, a stronger moral responsibility exists on his part. The owner is rendered liable from the policy of the law alone. He rarely knows anything about the security of

collected in which the general rule as to the nonliability of an employer for the torts of an independent contractor was held or assumed to be applicable as regards actions in which it is sought to recover against principal contractors for injuries caused by the acts of subcontractors. Some additional authorities illustrating this phase of the rule are cited in the footnote.1

the work, either resulting from the plan or its execution. On the other hand, in the eye of conscience, the undertaker is the responsible man."

In Beauchamp, Civil Code (Quebec) § 1696, will be found a list of the French authorities for the doctrine that a servant is not liable personally for his own negligence.

1 Kilts v. Kent County (1910) 162 Mich. 646, 127 N. W. 821 (defective scaffold); Ege v. Phoenix Brick & Constr. Co. (1906) 118 Mo. App. 630, 94 S. W. 999 (contractor employed to grade a street carried the material excavated to another street, and deposited it so as to form an embankment in front of the plaintiff's premises); Manchester v. Warren (1893) 67 N. H. 482, 32 Atl. 763; Eccles v. Darragh (1880) 14 Jones & S. (N. Y.) 186 (brick fell on passer-by from building which was being wrecked by a subcontractor); Haefelin v. McDonald (1904) 96 App. Div. 213, 89 N. Y. Supp. 395; Murphy v. New York (1908) 128 App. Div. 463, 112 N. Y. Supp. 807 (dynamite stored in street exploded and injured person in adjoining building); Dorn v. Snare & T. Co. (1909; Sup. Ct. App. T.) 62 Misc. 269, 114 N. Y. Supp. 820 (pedestrian injured by heavy object dropped from bridge); New York v. Corn (1909) 133 App. Div. 1, 117 N. Y. Supp. 514 (temporary bridge over excavation in sidewalk collapsed); Von Lengerke v. New York (1912) 150 App. Div. 98, 124 N. Y. Supp. 832, affirmed without opinion in (1914) 211 N. Y. 558, 105 N. E. 1101 (property injured owing to manner in which tunnel for sewer connections was excavated); Phillips v. Roth (1914) 160 App. Div. 792, 145 N. Y. Supp. 745 (passer-by injured by fall of scaffold used by workmen engaged in installing storm windows); Wray v. Evans (1876) 80 Pa. 102; Bancroft v. Goodwin (1905) 41 Wash. 253, 83 Pac. 189 (goods of tenant damaged 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 com

building while it was 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 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.3

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.1

$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).

Walters v. American Bridge Co. (1912) 234 Pa. 7, 82 Atl. 1103. The same position was taken in Ege v. Phoenix 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 assignor with liability was that the assignment of the contract was prohibited by clauses in the city charter and in the contract itself. But the court was of opinion that "both these provisions were intended for the benefit of the city, and did not and could not change the legal relations existing between the contractor and his assignees."1

$ 4. Liability of contractor in respect of injuries sustained by his own servants.

The question whether a servant of a 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 §§ 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 to the liability of a master for an injury resulting from the negligence of a contractor in respect of work which involves the discharge of one of those specific duties that are imposed upon the master for the protection of his servants.

II. Liability of contractor to third persons: subject considered apart from the effect of agreements creating specific duties.

§ 5. Application of general doctrine in cases where both the contractor and the employer are sued.

The effect of the doctrine adverted to in § 1, supra, so far as regards cases in which the liability of the employer

1 Bower v. Peate (1876) L. R. 1 Q. B. Div. (Eng.) 321.

2 The Eugene F. Moran (1909) 212 U. S. 466, 53 L. ed. 600, 29 Sup. Ct. Rep. 339; The R. B. Forbes (1856) 1 Sprague, 328, Fed. Cas. No. 11,598; The Belknap (1873) 2 Low. Dec. 281, Fed. Cas. No. 1,244; Northern Constr. Co. v. Johnson (1918) 132 Ark. 528, 201 S. W. 510; Houghton v. Loma Prieta Lumber Co. (1907) 152 Cal. 500, 14 L.R.A. (N.S.) 913, 93 Pac. 82, 14 Ann. Cas. 1159; Hughes v. Harbor & S. Bldg. & Sav. Asso. (1909) 131 App. Div. 185, 115 N. Y. Supp. 320; Buckingham v. Commary-Peterson Co. (1918) 39 Cal. App. 154, 178 Pac. 318; Jefferson v. Jameson & M. Co. (1896) 165 Ill. 142, 46 N. E. 272; Hogan v. Chicago (1897) 168 Ill. 551, 48 N. E. 210; Murray v. Arthur (1901) 98 III. App. 331; Louisville & N. R. Co. v. Smith (1909) 134 Ky. 47, 119 S. W. 241; Louisville R. Co. v. Wiggington (1913) 156 Ky. 400, 161 S. W. 209; Camp v. Church of St. Louis (1852) 7 La. Ann. 321; Muldry v. Fromherz & Drennan (1917) 142 La. 1087, 78 So. 126; Gilbert v. Halpin, 3 Ir. Jur. N. S. 300; Gorham v. Gross (1878) 125 Mass. 232, 28 Am. Rep. 224; Moore v. Sanborne (1853) 2 Mich. 519, 59 Am. Dec. 209; Fuller v. Grand Rapids (1895) 105 Mich. 529, 63 N. W. 530; Shute v. Princeton Twp. (1894) 58 Minn. 337, 59 N. W. 1050; Casey v. Wrought Iron Bridge Co. (1905) 114 Mo. App. 47, 89 S. W. 330; Carter v. Berlin Mills Co. (1876) 58 N. H. 52, 42 Am. Rep. 572; Mann v. Max (1919; Err. & App.) 93 N. J. L. 191, 21 A.L.R. 1227, 107 Atl. 417; Negus v. Becker (1894) 143 N. Y. 303, 25 L.R.A. 667,

is denied on the ground that the injurious act of the contractor was collateral in its nature, has been thus stated: "When a person employs a contractor to do a work lawful in itself, and involving no injurious consequences to others, and damage arises to another party from the negligence of the contractor or his servants, the contractor and not the employer is liable" 1 The rule thus stated is taken for granted in all the cases cited in §§ 20 et seq., of the monograph in 18 A.L.R. pp. 801 et seq. It was explicitly recognized in the cases cited in the footnote, as well as in many others which it would be superfluous to mention.2

42 Am. St. Rep. 724, 38 N. E. 290; King v. Livermore (1876) 9 Hun (N. Y.) 298, affirmed in (1877) 71 N. Y. 605 (subcontractor alone liable); Deyo v. Kingston Consol. R. Co. (1904) 94 App. Div. 578, 88 N. Y. Supp. 487; Sartirana v. New York County Nat. Bank (1910) 139 App. Div. 597, 124 N. Y. Supp. 197; Thorn v. Clark (1919) 188 App. Div. 411, 177 N. Y. Supp. 201; Smith v. South & Western R. Co. (1909) 151 N. C. 479, 66 S. E. 435; Painter v. Pittsburgh (1863) 46 Pa. 213; Wray v. Evans (1876) 80 Pa. 103; Smith v. Simmons (1883) 103 Pa. 32, 49 Am. Rep. 113; Susquehanna Depot v. Simmons (1886) 112 Pa. 384, 56 Am. Rep. 317, 5 Atl. 434; Sanford v. Pawtucket Street R. Co. (1896) 19 R. I. 537, 33 L.R.A. 564, 35 Atl. 67; Read v. East Providence Fire Dist. (1898) 20 R. I. 574, 40 Atl. 760, 4 Am. Neg. Rep. 589; Morris v. Salt Lake City (1909) 35 Utah, 474, 101 Pac. 373; Bailey v. Troy & B. R. Co. (1884) 57 Vt. 252, 52 Am. Rep. 129; Halifax v. Lordly (1892) 20 Can. S. C. 505; M'Lean v. Russell (1849) MacN. & Co. (1849) 11 Sc. Sess. Cas. 2d series, 1035, (1850) 12 Sc. Sess. Cas. 2d series, 887, 22 Scot. Jur. 394; Smith v. Ulen (1914) Alberta,, 28 West. L. Rep. 136, 6 West. Week. Rep. 678, 17 D. L. R. 400; Woodhill V. Great Western R. Co. (1855) 4 U. C. C. P. 449; Campbell v. McGregor (1889) 29 N. B. 644.

In Hobbit v. London & N. W. R. Co. (1849) 4 Exch. 254, 154 Eng. Reprint, 1205, Rolfe, B., referring to the statement of Littledale, J., in Laugher v. Pointer (1826) 5 Barn. & C. 558, 108 Eng. Reprint, 204, that "the law does not recognize a several liability in

On the other hand, the contractor is liable jointly with the principal employer in cases belonging to the categories specified below. Only a few precedents are cited under each paragraph. The existence of a concurrent right of action against both parties is either affirmed or taken for granted in all the cases discussed in the monograph referred to.

(a) Cases in which the injury complained of resulted from the execution of the stipulated work in the manner specified by the contract.3 See monograph in 21 A.L.R. pp. 1229 et two principals who are unconnected; if they are jointly liable, you may sue either, but you cannot have two separately liable"-observed: "This doctrine is one of general application, irrespective of the nature of the employment, and, applying the principle to the present case, it would be impossible to hold the present defendants liable, without, at the same time, deciding that the contractors are not liable, which it would be impossible to be contended."

3 Lexington & E. R. Co. v. Breathitt County Bd. of Edu. (1917) 176 Ky. 541, 195 S. W. 1094 (performance of work involved commission of trespass); Hanrahan v. Baltimore (1911) 114 Md. 517, 80 Atl. 312 (excavation of sewer trench in alley caused walls of building to crack and fall out of plumb); Carson v. Blodgett Constr. Co. (1915) 189 Mo. App. 120, 174 S. W. 447.

Dalton v. Angus (1881) L. R. 6 App. Cas. 832, 50 L. J. Q. B. N. S. 689, 44 L. T. N. S. 844, 30 Week. Rep. 191, 46 J. P. 132, 10 Eng. Rul. Cas. 98H. L.; Bower v. Peate (1876) L. R. 1 Q. B. Div. (Eng.) 321, 45 L. J. Q. B. N. S. 446, 35 L. T. N. S. 321; Gray v. Pullen (1864) 5 Best. & S. 970, 122 Eng. Reprint, 1091, 34 L. J. Q. B. N. S. 265, 11 L. T. N. S. 569, 13 Week. Rep. 257-Exch.; Jacob Doll & Sons v. Ribetti (1913) 121 C. C. A. 621, 203 Fed. 593, 5 N. C. C. A. 1, certiorari denied in (1913) 229 U. S. 616, 57 L. ed. 1353, 33 Sup. Ct. Rep. 776; The Robert R. (1918) 166 C. C. A. 365, 255 Fed. 37 (contractual duty of employer and positive negligence of contractor); Green v. Berge (1894) 105 Cal. 52, 45 Am. St. Rep. 25, 38 Pac. 539; District of Columbia v. Blackman (1908) 32 App. D. C. 32; Girdzus v. Van Etten (1918) 211 III. App. 524; Rowell v.

seq. The right of action in cases of this class is, however, determinable with reference to the qualifying effect of the doctrine applied in those which are reviewed in § 12, note 1, infra.

(b) Cases in which the tortious act in question was of such a nature as to involve the breach of a positive, nondelegable duty incumbent upon the principal employer. See monographs specified in § 4, supra.

(c) Cases in which the particular act which caused the injury complained of was done in compliance Williams (1870) 29 Iowa, 210; Holmquist v. C. L. Gray Constr. Co. (1915) 169 Iowa, 502, 151 N. W. 828, 9 N. C. C. A. 208; Probst v. Hinesley (1909) 133 Ky. 64, 117 S. W. 389 (for a decision relating to a subsequent stage of the proceedings which arose out of the same accident, see Bankers Surety Co. v. Jefferson Realty Co. (1911) 143 Ky. 549, 137 S. W. 224); Owens v. Georgia L. Ins. Co. (1915) 165 Ky. 507, 177 S. W. 294; Gnau v. Ackerman (1915) 166 Ky. 263, 179 S. W. 217; Deford v. State (1869) 30 Md. 179; McCarthy v. Clark (1911) 115 Md. 454, 81 Atl. 12; Baltimore v. Leonard (1917) 129 Md. 621, 99 Atl. 891; Jones v. Boston (1905) 188 Mass. 53, 74 N. E. 295; Stoliker v. Boston (1909) 204 Mass. 522, 90 N. E. 927; Ward v. ElyWalker Dry Goods Bldg. Co. (1913) 248 Mo. 348, 45 L.R.A. (N.S.) 550, 154 S. W. 478; Schlinski v. St. Joseph (1913) 170 Mo. App. 380, 156 S. W. 823; Taylor v. Walsh (1916) 133 Mo. App. 516, 186 S. W. 527; Scott v. Curtis (1909) 195 N. Y. 424, 40 L.R.A. (N.S.) 1147, 133 Am. St. Rep. 811, 88 N. E. 794, reversing (1908) 126 App. Div. 916, 110 N. Y. Supp. 1145; Wolf v. Third Ave. R. Co. (1902) 67 App. Div. 605, 74 N. Y. Supp. 336; Duerr v. Consolidated Gas Co. (1903) 86 App. Div. 14, 83 N. Y. Supp. 714; Godfrey v. New York (1905) 104 App. Div. 357, 93 N. Y. Supp. 899, affirmed without opinion in (1906) 185 N. Y. 563, 77 N. E. 1187; Warden v. New York (1908) 123 App. Div. 733, 108 N. Y. Supp. 305, affirmed without opinion in (1908) 193 N. Y. 669, 87 N. E. 1129; Hughes v. Harbor & S. Bldg. & Sav. Asso. (1909) 131 App. Div. 185, 115 N. Y. Supp. 320; Dunlap v. Raleigh, C. & S. R. Co. (1914) 167 N. C. 669, 83 S. E. 703, 7 N. C. C. A. 928; Free

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