Harrison v. Kiser

Blandford, Justice. The plaintiff in error brought his action against the defendant in error to recover damages which he alleged he received by reason of the careless and negligent manner in which the defendant had excavated her grounds adjoining the plaintiff’s building, whereby the plaintiff’s house was injured and damaged. The case went to trial, and a verdict was had for the defendant; and thereupon the plaintiff moved the court for a new trial, on several grounds. 1. Besides the general grounds, the motion for new trial alleges that the court erred, during the progress of the trial, in denying and refusing the prayer of the plaintiff, in which [592] •he prayed that W. S. Thomson, Esq., one of the defendant's counsel, who had acted as a commissioner, together with the plaintiff’s counsel, in taking the testimony of McGilvray, be required to return the same into court, it being alleged that such testimony was still in the hands of Thomson. It appeared that this application was made after the opening speech to the jury by defendant’s counsel and the reply thereto by the plaintiff’s counsel, and during the concluding speech by the defendant’s counsel, the defendant being entitled to open and conclude the case. • We see no error in this ruling of the court. If the testimony was material, the application came too late. Besides, it was in the discretion of the court to stop the case and compel the testimony to be brought in, and to allow ■the same (o be introduced in evidence, thereby reopening the whole case. This discretion of the court we do not feel authorized to interfere with, as we are satisfied in this case that no injustice was done the plaintiff. 2. It is further alleged as error, that the court refused to give the following charge requested by counsel for the plaintiff: “ Where the proof shows that there is evidence in existence which, if produced, would show the truth of the matter in controversy, and that evidence is within the control of one of the parties to be affected by it, and such party fails to produce such evidence, the presumption of law is that, if the evidence were produced, ik would be against the interest of the party withholding or failing to produce it.” Under the facts of this case, there was no error on the part of the court in refusing to give this charge, inasmuch as the plaintiff had introduced the testimony of the defendant herself to the effect that she had employed McGilvray as an independent contractor, and had him to build her house, and had no control over the work. 3. Another error complained of is, that the court refused to instruct the jury as follows : “ If the evidence shows that the defendant made a contract in writing with Mc-Gilvray, that she claims relieves her from liability to the [593] plaintiff, the presumption of law, in the absence of proof to the contrary, is that such contract is in her possession or subject to her control.” This request is without merit, for the reason that the plaintiff himself had shown to the court and jury that a contract was madefi>y the defendant with McQ-ilvray, as an independent contractor, to do this work, and that she had no control of the same. 4. It is further alleged that the court erred in charging the jury as follows:Under this plea of the general issue, the .defendant specially maintains, among other things, that she is not liable to the plaintiff, because the work of which the plaintiff complains was committed by her altogether. to an independent contractor, she herself having no direction as to the manner of doing the work.” We see no error in this charge. The code, §2962, declares : “ The employer is not responsible for torts committed by his employé when the latter exercises an .independent business, and in it is not subject to the immediate direction and control of the employer.” Another section (2963) declares that, “ by ratification of a tort committed for one’s benefit, the ratifier becomes liable as if he committed it; otherwise, if the act was done for the benefit of a third person.” There is no evidence in this record that the defendant ratified in any manner any action of the employé, McQilvray, which caused the injury to the plaintiff’s house; and hence the charge rests upon section 2962 of the code, and is correct. 5. Another charge excepted to is, that the court instructed the jury as follows: “ I direct you to inquire in the first place, whether or not this defendant, Mrs. Kiser, is to be treated as responsible for the work done in the excavation as it was done. She says she is not responsible, and the plaintiff says she is. She says she is not so responsible, because she committed it altogether to an independent contractor, over whose conduct she exercised no direction as to the manner in which he should execute the work. I read you, as a rule for your guidance, a section of the code [594] of this State in this connection : ‘ The employer is not responsible for torts’ (that word c torts’ means wrongs). ‘ The employer is not responsible for torts committed by his employé when the latter exercises an independent business, and in it '(that is, in the business,) is not subject to the immediate direction and control of the employer.’ You perceive, from that statement of the law, that where one has a lawful work to do, and employs another, who has an independent business of his own including work of that class to do, and where he does not himself exercise any direction as to how it shall be done, the employer is not responsible for any wrongs that the employé may commit in the course of that work.” The main objection to this part of the charge is upon the ground, that the defendant has no plea which authorizes it and upon which to base the charge. The complaint is not that the charge is not law, but that it should not have been given in this case, because there is no plea to warrant it. We think the plea of the general issue was sufficient to warrant the charge. It does not appear that the contractor was employed to do the work in the manner in which it was done, but it may be fairly inferred from the record that it was a lawful work, a work which could have been done in a lawful manner, so as to have caused no injury to the plaintiff as alleged in the declaration. Hence it is to be presumed that the employé was employed to do this work in a lawful manner, and not in a negligent and unlawful manner. 6. Another assignment of error is, that the court erred in instructing the jury as follows: “ Now this rule of law, of course, must be applied to the case at bar. If you should believe from the evidence introduced to your attention, that Mrs. Kiser employed one McGilvray to do the work of constructing her building, including the excavation necessary for that purpose, and she herself did not give him1 direction as to the manner of doing the work, then she could not be held responsible for the work as [595] done.” It follows from what has been already said that this is a legal charge. Taking the instructions of the court which had already been given, there is no reasonable exception to this charge of the court. 7. It is further assigned as error that the court charged the jury as follows : “ If she h’ad an agent, and that agent supervised the work for the mere purpose of seeing 'that it was done in conformity with the contract, and without interfering as to the particular method in which it was to be done, or the means by which a given result was to be accomplished, that would not be held in law to be a control and direction of the work by her.” If she or her agents had no immediate direction and control of the employe, then she would not be held responsible for the manner in which the work was done, unless she in some-manner ratified it, knew how it was done, knew it was calculated to injure the property of the plaintiff, and ratified the work ; — then she would be liable. 8. Complaint is made that the court erred as to the measure of damages, having charged the jury on this subject that the measure of damages was the difference between the value of the property before the injury was done, and its value after it was done. We do not think this was a correct measure of damages in this case, but on the contrary, we are of the opinion that if the plaintiff was entitled to recover any damages, he would be entitled to recover whatever sum it would take to put the house in the condition in which it was before it was injured. -The complaint is that the plaintiff’s house was injured,, not that his land was injured; and we know of no better rule than that which we have stated.. But, although this is error, it is not a material error in this case, inasmuch as, from the facts of the case, the verdict of the jury was right, and the plaintiff was not entitled to recover any damages. After a careful consideration of this record, we are of the opinion that the court committed no error in refusing a new trial. J udgment affirmed.