Berg v. . Parsons

Martin, J. The doctrine of respondeat superior is based upon the relation of master and servant or principal and agent. As no such relation existed between the parties, I find no ground upon which the judgment in this action can be sustained. The rule that where the relation of master and servant or principal and agent does not exist, but an injury results from negligence in the performance of work by a contractor, the party with whom he contracts is not responsible for his negligence or that of his servants, is well established by the author *113 ities in this state. (Blake v. Ferris, 5 N. Y. 48; Pack v. Mayor, etc., 8 N. Y. 222; Felly v. Mayor, etc., 11 N. Y. 432; McCafferty v. S. D. & P. M. R. R. Co., 61 N. Y. 178; King v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 181; Town of Pierrepont v. Loveless, 72 N. Y. 211; Ferguson v. Hubbell, 97 N. Y. 507; Herrington v. Village of Lansingburgh, 110 N. Y. 145; Roemer v. Striker, 142 N. Y. 134.) In Blake v. Ferris the defendant had a license to construct, at his own expense, a sewer in a public street. He engaged another person to construct it for a stipulated price. The sewer,was left at night in a negligent manner by the workmen who were employed in its construction. It was held that the immediate employer of the servant, through whose negligence the injury occurred, was responsible, but that the primary principal or employer was not. In Pack v. Mayor, etc., which was an action for damages caused by the alleged negligence of a contractor in blasting rocks, which resulted in injury to the plaintiff’s house, in personal injury to his wife, and in killing one of his children, it was held that, as the work was being prosecuted under a contract with a person who was to perform it, the corporation was not liable, but that a recovery for such an injury could be had only against the person actually guilty of the wrongful act, or against one to whom he stands in the relation of servant or agent, and that the contractor in such a case was not the servant or agent of the corporation. The Kelly case was also an action for damages occasioned by negligence in blasting. In that case there was a contract between the city and a contractor to grade a certain street, and it was held that the city was not liable for damages occasioned by negligence in the performance of the work, but that the contractor was alone liable, although the contract provided that the work should be done under the direction and to the satisfaction of the officers-of the corporation. The McCafferty case was for an injury to the plaintiff’s - store and property by alleged negligence in blasting rocks necessary for the construction of the defendant’s road. There *114 the corporation had let the work of constructing the road by contract, and the negligence was that of the contractor or his employees, and this court held that the defendant was not liable, and that there was no distinction between real and personal property, so far as its negligent use and management were concerned, or of negligent acts upon it by others. In the King case the owner of real property was held not liable for injuries resulting from negligence on the part of a contractor or his employees engaged in performing a lawful contract for specific work upon the premises of the defendant, and the rule that the law will not impute to one person the negligent acts of another, unless the relation of master and servant or principal and agent exists, was again asserted. The same doctrine was held in the Town of Pierrepont case, where the Plaike and Paclc cases were followed, and it was declared that a contractor or his employees did not stand in the relation of servants to a person who was the owner of the property and with whom the contract was made, and that the latter was not answerable for their negligence. In Ferguson v. Hubbell, where the injury for which a recovery was sought resulted from the act of a contractor, it was again decided that the contractor was, in no sense, the servant of the defendant, and that the doctrine of respondeat superior did not apply. The Herrington case was for damages occasioned by carelessness in blasting. The work was done by contractors, and the court followed its previous decisions and held that the defendant was not liable, but that the injury was occasioned by the negligence of the' contractors, and that they alone were responsible. The Roemer case was also for negligence in blasting and excavating on the defendant’s premises which adjoined the premises of the plaintiff. The work was done by a contractor, and the owner was held not liable. It seems to me that the principle of these decisions is decisive of the case at bar, and is directly adverse to the contention of the respondent. The only authorities in this state *115 cited as sustaining the doctrine contended for, are Blake v. Ferris (5 N. Y. 48) and Storrs v. City of Utica (17 N. Y. 104). The Blake case we have already referred to, which is a direct authority against the doctrine it is cited to sustain. In the Storrs case the facts were different, and the principle of the decision has no application. There the doctrine of the Blake, Kelly and Pack cases was expressly indorsed in the opinion of Judge Comstock, who said: “How, in these two cases of Pack v. The Mayor, etc., and Kelly v. The Mayor, etc., the general doctrines so well set forth in Blake v. Ferris were applied with entire precision and accuracy.” "While the learned judge doubted the propriety of the application of that doctrine to the case of Blake v. Ferris, he expressly recognized its correctness and its applicability to a case like this. The decision of the court in the Storrs case was placed upon the sole ground that it was the duty of the corporation to keep its streets in a safe condition for public travel, and for a failure to discharge that duty the corporation was liable. The question of the negligent manner in which the work was performed was entirely excluded by the opinion in that case. There are certain exceptional cases where a person employing a contractor is liable, which, briefly stated, are: Where the employer personally interferes with the work, and the acts performed by him occasion the injury; where the thing contracted to be done is unlawful; where the acts performed create a public nuisance; and where an employer is bound by a statute to do a thing efficiently and an injury results from its inefficiency. Manifestly, this case falls within none of the exceptions to which we have referred. .There was no interference by the defendant. The thing contracted to be done was lawful. The work did not constitute a public nuisance, and there was no statute binding the defendant to efficiently perform it. In none of those exceptional cases does the question of negligence arise. There the action is based upon the wrongful act of the party, and may be maintained against the author or the person performing or continuing it. *116 In. the case at bar the work contracted for was lawful and necessary for the improvement and use of the. defendant’s property. Consequently no liability can be based upon the illegality of the transaction, but it must stand upon the negligence of the contractor or his employee alone. It seems very obvious that, under the authorities, the defendant- was not responsible for the acts of the contractor or his employees, and that the court should have granted the defendant’s motion for a nonsuit. If a contrary rule were established it would not only impose upon the owners of real property an improper restraint in contracting for its improvement, but would open a new and unlimited field for actions for the negligence of others which has not hitherto existed in this state, and practically overrale a long line of decisions in this court which firmly establish a contrary doctrine. It follows that the judgment should he reversed.