Reynolds v. Braithwaite

Opinion, Mr. Justice McCollum : As the specifications of error from one to eight inclusive, are not in compliance with the Rule of Court, they will not be considered. The remaining specifications raise but two questions. The first of these relates to the responsibility of William Braithwaite for the acts complained of, and the second to the charge of the court on the subject of damages. The appellant contends that the cause of action arose from the acts of an independent contractor, who alone is liable for the injury inflicted by them. It is a well-settled general rule that a party who has contracted for the doing of certain work, [421] for his use and benefit, is not liable for injuries arising in the performance of such work; and this rule rests upon the ground that a contractor, as between him and his employer, is responsible only for the fulfillment of his agreement, and, pending the performance of the work, is, to a certain extent, substituted for the party for whom the work is to be performed. In the application of this rule to the cases, the decisions are apparently conflicting; but it may be regarded as settled that, if the employer keeps control of the mode of the work, his liability for the acts of a contractor and servant is the same. In the present case, the appellant employed Marion Hazeibaker to do some grading for him on the lot on which he resided, and across which a pipe was laid to conduct water from a certain spring to the dwelling of the appellee. . The grade line, fixed by the appellant, was two feet below the pipe, and the grading would necessarily disturb, and probably injure it. The appellant was present most of the time while the work was in progress. In his testimony he says: “ When he (Hazelbaker) got down to pretty near the line of the pipes, the level of them, I dug along the line, to show him the line so that he would keep away from them, and he was plowing there, and I told him he was coming too close, but he thought not, and the ground was plowed, and cut the pipe.” He claims that he was solicitous that the work should he done without injuring the pipe, and that he frequently spoke to the contractor about it, but he made no provision in his contract for its protection. When it was cut he put a plug in it to prevent the water running upon his land. His conduct immediately thereafter is described in the testimony of Mrs. Reynolds as follows: “ I noticed in the kitchen that the water was stopped, and I went up to where the men were working, and told them the water was stopped; and the two men said, ‘Yes; we put the pipe to one side; ’ and I told them to be careful and not get dirt in the pipe, that it might stop it; and just then Mr. Braithwaite came out of the house, and he said, ‘Yes; your water is stopped, and is going to be stopped;’ and I said, ‘ Why, we have a right of way through here, and you cannot stop our water; we have a deed, and paid for it; ’ and he said, ‘Well, I wasn’t going to have you coming on to my ground, tearing up the ground.’ He said the pipe should [422] not go down on Ms property again.” Subsequently, when the appellee expressed a desire to enter the ground to re-lay the pipe, the appellant declared that he should not do so, and if he attempted to, he would prevent him by force. The evidence to which reference has been made is undisputed, and shows that the appellant participated in and approved the acts which constitute the cause of action. It shows that he denied the appellee’s claim to an easement in the land, and that he welcomed the destruction of the pipe as an aid in defeating that claim. If he did not direct the cutting of the pipe, he was present when it was done, and he promptly adopted the act as his own.' He cannot stand upon and derive advantage from it, and escape liability for it. There was no error in holding that upon the un contradicted evidence in the case the appellant was responsible for the acts complained of, and for the injury caused by them. We think the appellant has no just cause to complain of what was said by the court on the subject of compensatory and exemplary damages, nor of the verdict of the jury. The judgment is affirmed.