Winniford v. MacLeod

Mr. Justice Burnett delivered the opinion of the court. As a preliminary, it may be stated that the court submitted to the jury the question of whether or not — 305 — the plaintiffs would he entitled to recover exemplary in addition to compensatory damages, and the jury found a verdict acquitting the defendants of that charge. 1. As to the defendant MacLeod, he complains of error in the court in giving the jury these instructions, to the effect that the plaintiffs would be entitled to recover not only what it would cost them to put the house back into the condition in which it was before the blast, but also for the loss of time occasioned by the blast, and, moreover, for the loss of profits which they anticipated they would reap as the fruits of their contract in building the house. Practically the only testimony given by the plaintiffs on this point was that of the plaintiff Mays, who, without giving any accurate figures, estimated that the shingling required in making repairs amounted to $75, tinwork $30, plastering $100, material work $35, painting $10, carpentering $100, total, $350. He also stated that the electric wiring and the plumbing were involved, and these were estimated by him at $10 and $50, respectively; but he admitted on cross-examination that the wiring was not injured, and that he was not responsible for the plumbing. The cardinal principle of damages is compensation, and the defendant would fulfill his whole duty to the plaintiffs in that respect if he paid such a sum as would fairly compensate them for the injury complained of. The restoration of the shingling, plastering, and other work would necessarily include the time involved in their installation, and that time would be all that would be necessarily lost by the plaintiffs. To allow them an additional item of $300 for loss of time would be to pay them twice for the same thing. 2. The testimony about the profits was purely speculative. The plaintiffs claimed that they expected — 306 — to make a profit, but could not give any light on whether they either made or lost by the transaction. Their gain depended upon whether they could construct the house according to their engagement for less than the contract price. If the defendant had sufficiently compensated them so as to restore them to the situation which they occupied at the time of the explosion, he has performed his whole duty, and they were made whole, so that the profit is not affected further by the act of the defendant. The court was in error in instructing the jury as it did on the measure of damages. It remains to consider the appeal of the defendant Lewis-Wiley Hydraulic Company. At the close of plaintiffs’ case this defendant moved to enter judgment of nonsuit in its favor, on the grounds that the allegations against it had not been sustained by the evidence, that there was no testimony tending to show that it had participated in the explosion of any blast, particularly the one causing the injury complained of, and that no liability had been proven against it. The court overruled this motion. Later, at the close of the whole case, the defendant company moved for a directed verdict in its favor upon substantially the same grounds, and also because the testimony showed that A. L. MacLeod was an independent contractor in the prosecution of the work, over whom this defendant had no control. 3. The general rule is that, where work is committed in all its details to a contractor, and he is responsible to his employer, not for details, but only for a finished result, the former alone is answerable for injury happening to third parties in the prosecution of the work. There are exceptions to this rule. The employer must also respond if the manner provided for carrying out the contract is in itself dangerous, or if the project is manifestly dangerous to others, and an injury ensues — 307 — on account of either the method prescribed or the nature of the undertaking itself. These exceptions are well illustrated by the authorities cited for the plaintiffs here. For instance, in Bonaparte v. Wiseman, 89 Md. 12 (42 Atl. 918, 44 L. R. A. 482), the contract itself contemplated excavating below the foundation of an adjoining house. In Cameron v. Oberlin, 19 Ind. App. 142 (48 N. E. 386), the contractor was employed to bum brush and logs adjoining the plaintiff’s land, as a result of which fire was communicated to the premises and property of the plaintiff to his damage. In Falender v. Blackwell, 39 Ind. App. 121 (79 N. E. 393), cited in 14 L. R. A. (N. S.) 914, note, the contractor was employed to break up castings by the use of dynamite in a place where many people were exposed to the danger of the explosion. In Ohio S. R. Co. v. Morey, 47 Ohio St. 207 (24 N. E. 269, 7 L. R. A. 701), the contract itself involved the digging of a ditch across a public traveled street. In all these cases either the undertaking itself or the manner prescribed for accomplishing it was intrinsically and manifestly dangerous to other parties, and the employer was held liable as a party to the ensuing tort. 4. In the matter of nonsuit, all the testimony proved or tended to establish was that the defendant MacLeod, while grading streets and lots upon the property of the codefendant, used blasting powder to aid him in removing the earth, and in so doing, on the occasion complained of, injured the house in question by an excessive blast. In order to charge the defendant company, it was necessary to go further and show some privity of contract or concurrence of action between the two defendants. This the testimony wholly failed to disclose, and the nonsuit should have been allowed. 5. The contract under which the grading of the property mentioned was carried on was introduced in — 308 — evidence. It was originally made between Lewis-Wiley Hydraulic Company, as party of the first part, and E. N. Timmons and John Celish, parties of the second part, with whom the defendant MacLeod signed as guarantor. The contract provided that: “In consideration of the agreements of the first party herein contained, the second parties hereby agree to furnish all the labor, superintendence, equipment and materials whatsoever necessary for the completion of certain grading at and about Westover Terrace, in the City of Portland, county of Multnomah, and State of Oregon, as more particularly set forth in the specifications for such grading hereinafter contained, as a part of which said specifications and of this instrument express reference is hereby made to a certain map or plat of said Westover Terrace, and lands contiguous thereto, hereto attached and marked ‘A.’ Said specifications are as follows, to wit: Grade Melinda Avenue and River View Drive from the end of the present existing pavement on Melinda Avenue to a junction with the operations of the first party at the intersection of River View Drive and Mountain View Drive. [Then follows a long list of similar specifications relating to different lots, blocks and streets.] The first party agrees to stake out said work, so as to show all street lines, cuts, fills and slopes as set forth in the foregoing specifications, and as approximately shown on said map or plat hereto attached, and will from time to time furnish, on application of the second parties therefor, such additional information as may be required for the guidance and information of the second parties in the conduct of said work, and the second parties agree to make all cuts and fills in accordance with such staking, and in each and every instance to dress the streets and slopes to the true line and surface without back filling. Slopes in excavation shall bo between one on one and one on one half, and slopes on — 309 — embankment shall, in general, be as steep as they can be made consistently with stability, and considering the nature of the material used; but, whether in excavation, or in embankment, they shall in all cases conform to the staking of the first party and to any requests which the first party may from time to time during the progress of the work make of the second parties.” The remainder of the contract relates to the rate of payment. It appeared that the principal second parties failed in their undertaking, and that the work was assumed by the defendant MacLeod under the contract quoted. This contract was the rule of action affecting the parties to it, and governing their relations. It also established their liabilities and responsibilities respecting the work in hand. The defendant company retained no control over the details or the manner of prosecuting the work. Its whole connection with the scheme was to furnish the survey and pay the compensation. The remainder of the task was incumbent upon the contractor. The contract was for grading. It was a lawful, harmless undertaking. There was nothing about it intrinsically dangerous to anyone. The fallacy of the argument for the plaintiffs consists in the assumption that the contract required blasting and the use of dangerous quantities of powder. So far as the defendant company was concerned, it mattered not whether the contractor excavated the earth by the use of large steam shovels, by hydraulic process or by picks and shovels, or whether he removed it by trains of cars, by wheelbarrows, or in bags. The method of performing a harmless work was left to the contractor, and the latter alone is responsible for damages involved and arising out of the manner of accomplishment. Whether we consider the question as one of failure of proof entailing a nonsuit, or as a question of di — 310 — rected verdict, it should he decided in favor of the defendant company. 6. At the argument, the plaintiffs counted on their allegation that the defendant MacLeod had .been carrying on blasting operations on the premises in question for more than a year prior to the happening of the injury, all of which was well known to the defendant company. The contract under which the work was performed bore date April 18, 1911, while the injury happened October 29, 1911. The argument was that the land owner was liable for the negligence of an independent contractor where the work constituted a continuing nuisance. This argument, however, must be qualified by the principle that, unless the project itself or the manner of executing it as provided in the contract constitutes such a nuisance, the employer will not be guilty of maintaining it, unless he retains such control of the premises as would make him responsible in the first instance. This distinction is made clear in Clark v. Fry, 8 Ohio St. 358 (72 Am. Dec. 590), cited by plaintiffs, where Mr. Chief Justice Bartley sums up the discussion in this language: “It is very true, if the owner of real estate should willfully allow a nuisance to be created or to be continued by another on or adjacent to his premises, in the prosecution of a business for his benefit and under his authority, when he had full power to prevent or abate the nuisance, he would be justly liable for any injury which might result therefrom to another person.” The present case, however, is distinguishable from the doctrine there laid down. Here the nuisance, if any, arose from the manner of prosecuting an undertaking originally harmless in its nature. Measuring the defendant company’s authority by the legitimate contract appearing in evidence, the nuisance was not created by its authority, without which it could not — 311 — prevent nor abate tbe nuisance; that feature, being under tbe entire control of tbe contractor. Tbe judgment of tbe Circuit Court will be reversed for new trial as to the defendant MacLeod, with directions to dismiss the action as to the defendant Lewis-Wiley Hydraulic Company. Reversed. Mr. Justice Bean, Mr. Justice Eakin and Mr. Justice McNary concur.