Faren v. T. J. Sellers & Co.

The opinion of the Court was delivered by Fenner, J. The defendant firm became the purchaser of the immense structure known as the Main Building of the World’s Exposition, erected in the Public Park of the city of New Orleans. The object of tile purchase was to demolish it and to convert its materials into marketable lumber. The building was one of the largest ever constructed, covering a space of about 1300 by 900 feet. It was built for a temporary purpose and with great baste. The height and breadth of its spans were unusually large and many of the timbers were of great size and weight, the whole secured by an elaborate system of rafters, ridge-pieces, pujiútás, braces, etc. The -work of its safe demolition was one of great magnitude and reipiifcco^ skill and eare. - Defendants entered into a written contrae.*; with one J. H. Lynch, the pertinent portions of which are as follows: thai- Lynch was “to take down and lower on to main or ground floor of building; the whole of the trusses of various sizes, namely, the 75 foot spans and sfifty foot spans. In effect, the whole of the internal framing of the biiilding with the exception of that portion known as the gallery section, ,etc., etc.” *■ 6 * “The word truss, or section aforenamed is to mean-the whole of the frame worlc which is in position or place between two uprigihts or posts, and to include plates, braces, jaeh-rafters, ridge-pieces, purlines-, double postsor uprights supporting plates on which foot of seventy-five', and fifty foot spans rests, and also includes the maiu uprights or posts, the whole to be lowered and piled in tlieir respective sizes and scant-lings, etc.” Lynch further agreed “ to use all necessary and proper braces, struts, etc., so as to secure the safety of the various parts or portions of the above building. The whole of the work of demolition to be carried out according to the directions of the supervising architect, tohose decisions on all points in dispute, I (Lynch) agree to accept as final. If, at any time, I do not use due diligence and do not push the work — 1015 — or carry it out to his satisfaction, and notice in writing having been given me and I failing to carry out the instructions, I agree to forfeit this contract and give up all claim to any money or moneys that may be due to me. I do further agree to accept all responsibility with regard to any accident that may befall or happen to any of my employees or laborers.” Lynch was to receive $5.00 for each truss lowered, “ weekly payments to be made at the rate of fifty per cent, on amount of work done on certificate from supervising architect, the remainder to be paid on completion.” We take occasion now to say that the agreement as to Lynch’s responsibility for accidents to employees is brutum fulmen at to plaintiff, and this is admitted by defendant’s counsel. The supervising architect, referred to in the contract, was one employed by Sellers & Co., who resigned immediately after-wards and no other was employed, the only substitute being a police officer having no pretensions to being an architect, whom Sellers & Co. engaged simply to keep the record of Lynch’s work and to give him certificates for payment. Immediately after the contract, Sellers & Co. proceeded, through other employees, in advance of Lynch’s work, to strip the building, not only of the sheathing but of many of the important braces and purlines. The purlines are heavy cross-timbers connecting the immense successive trusses or spans with each other, fitted at each end into a slot in the trusses and secured by nails. They were of prime importance in strengthening and maintaining' the structure. There were 18 of them between each pair of trusses. Sellers' & Co. removed all except one on the 50 foot spans and three on the 75 foot spans, the last being one running along the crest of the trusses and one on each side. The testimony is conflicting as to the number and location of the braces removed, and the matter is of slight consequence. There is no question that the result of Sellers & Co.’s work was to weaken the structure beyond the-point of security, to make it dangerous to the lives of all who entered it and to add enormously to the hazard of Lynch’s work. In point of fact, over forty of the-trusses fell of their own weight at different times, and without doubt the whole of the structure was weakened, jarred and in many parts thrown out of plumb. The building was thereby converted into a public nuisance dangerous to all who approached it, and it was subsequently condemned as such in an official report of the city surveyor. The expert witnesses all agree that the method of demolition thus adopted by Sellers & Co. was improper, unsafe and unscientific, and — 1016 — that the braces and purlines, or at least a greater number of them, should have been left for removal in connection with the trusses themselves as. evidently contemplated by the contract, and as no doubt would have been done had the work proceeded under the direction of a competent architect. Under this condition of affairs Lynch proceeded with his work and safely removed a large number of the trusses. The method of removal adopted was to bring a'derrick up close to the truss and lash the latter securely to the derrick so as firmly to support it and hold it in position ; then to fasten a gant line to the purline and to disengage the latter from the truss by tension on the gant line, to tear it from its fastenings and then to lower it. On the occasion with which we are concerned this work had progressed as usual, the truss had been secured to the derrick, and Faren, Lynch’s employee, reached over on the purline for the purpose of fastening the gant line to it, when the purline slipped from its supports, plunging Faren in a fall of seventy-five feet, accompanied by the purline itself which fell on him, occasioning his death. The widow and minor children bring the present action against defendant for damages, and, on the verdict of a jury, recovered a judgment for $5000, from which the defendants appeal. The grounds of defence, as we understand them, are threefold, viz.: 1st. That Lynch was an independent contractor, and therefore that the relation of master and servant did not exist between defendants and Faren, the employee of Lynch. 2nd. That if Lynch was not an independent contractor, then that he was a fellow servant of Faren, and the injury resulting from Lynch’s fault, Faren cannot recover. 3rd. That Faren knew the danger and assumed the risks of the work, and therefore cannot recover. I. Both parties quote and accept the exposition of the doctrine of independent contractor given by Wm. Wood in his work on Master and Servant, viz.: “ When a person lets out work to another to be done by him, such person to furnish the labor and the contractee reserving no control over the work or workmen, the relation of contractor and contractee exists, and not that of master and servant, and the contractee is not liable for the negligent or improper execution of the work by the contractor.” Wood on Master and Servant, p. 593. This is a sound and conservative principle, but the element essential to the discharge of the contractee from responsibility is that he shall — 1017 — not reserve control over the work. This does not mean that he may not reserve a certain kind of power of direction as to the thing to be done, provided the method and instruments of doing the thing are left under the exclusive control of the contractor. “ The simple test is,” says Mr. Wood, “ who has the general control over the work ? who has the right to direct what shall be done and how to do it? And if the person employed reserves this power to himself, his relation to his employer is independent and he is a contractor; but if it is reserved to the employer or his agents, the relation is that of master and servant.” Wood, 611. In the leading case of Camp vs. the Church Wardens, the contract was for the reconstruction of a cathedral according to certain plans, the contractor agreeing to act “ under the direction and superintendence of the architect appointed by the wardens.” The court found the injury resulted from defects in the plan pursued in prosecuting the work as well as from negligence in the contractor, and held both liable in solido, on the ground that the plan or method of prosecuting the work was under the control of the architect. Camp vs. Church Wardens, 7 Am. 322. In another case before the Supreme Court of the United States, the contract was for the building of a wharf by the contractor for a railway company, and the contract contained the clause: “ It is understood and agreed that the said G. W. Bayley, division engineer of the company, shall supervise and direet the work- herein agreed to be done, and that the said work shall be done to his said satisfaction.” Considering the nature of the work, the court held that this clause operated a reservation of control over the method of conducting it which rendered the company responsible for injury resulting from defect in such method. R. R. Co. vs. Hanning, 15 Wall. 650. A recent case, perfectly analogous to the instant one, arose before the Supreme Court of Massachusetts, where the contractor entered into a written contract with trustees, by which he agreed “ to take down the entire building known as the A. house, or so much theroof as the trustees may request,” and which also provided, “ All of said work to be done carefully and under the direction and subject to the approval of the trustees.” The court held that this reservation of control implied that the contractor “ was subject to their orders as to the time and manner and mode of doing the work; that they had the right to step in and say to him, ‘you are not doing this as we directed you to do it; we direct you to do thus and so, and we direct you to do this in the other way,’ ” and that this brought the case within the relation — 1018 — of master and servant,” and rendered the trustees responsible for injuries resulting from the negligence of their employee. Linnehan vs. Rollins, 137 Mass. In the present case, two things are apparent on the face of the contract, viz.: 1st. That the work referred to in the contract embraced the entire demolition of the internal framing of the building, including removal of braces and purlines. 2d That the entire order, method and plan of this work of demolition was subject to the control of defendants through their agent, the supeivising architect, whose directions Lynch was bound to obey under penalty of forfeiting all his rights. The nature of the work was such that nothing else but the method of doing it required the supervision of an architect, and we can see no other possible construction of the language employed. If the architect had directed or permitted Lynch to strip the building as actually done by defendants, before removing the spans, Lynch would have been the servant of defendants quoad the adoption of this method, and they would have been responsible for any injury resulting therefrom. Afortiori are- they responsible when they themselves adopt this method and do this part of the work themselves. All authorities agree that the immunity of a coutractee depends on his entire abstinence from control, and that if he personally interferes in the work and assumes control of it or of some part of it, and through such interference, whether- as a direct result or as a consequence thereof, injury results to a servant, he is responsible. 2 Thompson on Neg., p. 913, No. 40; Wood, Mast. and Servant, p. 837; Wharton on Neg. §§ 186, 205; Cooley on Torts, p. 548; Gilbert vs. Beach, 16 N. Y. 608; Hefferman vs. Benkard, 1 Robt. 432. It is perfectly clear that the stripping of the building by the removal of the purlines and braces was an essential part of the work covered by the contract; that the time, order and manner of their removal formed important elements of the method to be adopted in effecting the demolition ; that the adoption of the particular method here pursued was the direct act of defendants themselves; that it was a vicious, faulty and dangerous method, and if the injury to Paren happened as a direct result or consequence of this fault, defendants cannot shield themselves from responsibility under the doctrine of independent contract. II. The evidence leaves no doubt that the accident to Paren was the consequence of the acts of defendants in stripping and weakening the building. No other cause is assigned for the breaking of the fasten — 1019 — ings and the detachment of the purline from its supports, without which it could not have fallen. This detachment resulted from the spreadiugof the trusses occasioned by the removal • of the numerous purlines and braces which held them in position, and by the jarring to which the building had been subjected in this unsafe condition. As to whether this spreading occurred before or after Lynch began work on this particular truss the evidence is conflicting; but it is sufficient to say it could not have occurred at all but for the removal of the other purlines and the strain to which the structure had submitted. It is claimed, however, that, notwithstanding the fault of defendants, the accident would not have happened but for the fault of Lynch in failing to comply with the stipulation in his contract requiring him li to use all necessary braces, struts, etc., so as to secure the safety of the various parts of the building.” This may or may not be true; but conceding it to be true, this would only serve to impute the accident to the combined faults of defendants and of Lynch, and the effect would be, not to discharge defendants, but merely to make Lynch responsible in sólido with them. Camp vs. Church Wardens, 7 Ann. 322; Cooley on Torts, p. 548. If we treat Lynch as a servant and not as an independent.contractor, and Faren, as a fellow servant, this would afford no protection to defendants. The doctrine is well settled that “ if the negligence of the master had a shaie in causing the injuries of plaintiff, the master is liable, notwithstanding the contributory negligence of his fellow-servant.” Grand Trunk vs. Cummings, 106 U. S. 700; Beach on Cont. Neg., § 96; Wharton on Neg., §§ 234, 913; 2 Thump. Neg., p. 913. Moreover, under this view of Lynch’s relation as a servant, he would be, as to Faren, a vice-principal or direct representative of the master, to whom Faren would owe the same obedience as to the master himself, and for whose negligence the master would be responsible as for his own. Chicago, etc., R. R. Co. vs. Ross, 112 U. S. Sec. 377; Towns vs R. R. Co,, 37 Ann. 632; Wood on Master and Servant, p. 865. III. The final contention of the’defense is that Faren knew the danger, and assumed the risk of the work in which he was engaged. Without discussing the nice distinctions underlying the application of the principle referred to, it is sufficient to say that the servant is only bound to see patent’defects, not latent ones; that mere knowledge of defects will not bar his recovery unless accompanied by knowledge — 1020 — that the defects are dangerous, and that he has a right to rely upon the care and superior knowledge and judgment of his employer, and to act upon the assumption that the latter would not expose him to unnecessary risk, and has taken all proper precautions to guard him from danger. Wood, Master and Servant, pp. 681, 738-9, 763; 2 Thompson, Neg., p. 975; Wharton, Neg., § 215. Here the defect which occasioned the injury, viz : the disengagement of the purline, was latent and, of course, entirely unknown to Earen, as otherwise he would not have trusted his weight upon it. It was the result of the vicious and faulty method of demolition adopted by defendants, the more faulty because they dispensed with the supervising architect required by their contract, whose better judgment would, doubtless, have prevented such imprudence. At all events, they created the danger, and were under the highest obligation to guard against it. They admit that they did not know or believe that there was danger. How can they require of Earen more knowledge or better judgment than their own ? He, on the contrary, had the right to rely on their superior knowledge and judgment. He had been engaged on this work from the beginning. Notwithstanding the stripping, a very large number of the trusses had been lowered without accident. He was not bound to anticipate that this particular purline was disengaged, or held to assume the risk of such a peril. The principle invoked by defendants has no application to this case, and as the injury happened by their fault, they must respond for the damages. The verdict of the jury was unanimous as to defendants’ liability, one juror stating that he disagreed as to amount of damages allowed, without stating whether he thought they should be greater or less. The jury acted under a charge of the judge, unusually full and clear, and certainly as favorable to defendants as the law would .justify. The judge, in overruling the motion for new trial, announced his conclusion that the law and the evidence were in favor of plaintiff. After a painstaking study of the record, we agree with him. Judgment affirmed. Poché, J. takes no part in this opinion and decree, having not heard the argumentof the case.