Swart v. Justh

Mr. Chief Justice Shepard delivered the opinion of the Court: The evidence recited does not warrant an inference that Lea-man’s contract to put in the skylight covered also the removal of the debris occasioned by its construction. Nor does it appear therefrom that the defendant was under any obligation to his tenant, or to anyone else, to remove from the roof of the building the old material left there after the completion of the work contracted for. Hence no question arose as to the liability of defendant, as the owner of the building, for injuries resulting directly from acts which the contractor was authorized or required to do, as in St. Paul Water Co. v. Ware, 16 Wall. 566, 576, 21 L. ed. 485, 488, and other like cases. But two material issues were presented by the evidence. The [600] first was, whether, after the completion of his contract for the construction of the skylight, Leaman had undertaken the removal of the old material at the request, or in obedience to the directions, of the defendant. If so, the jury were correctly charged that he was acting as the agent or employee of the defendant in such manner as to render the latter liable for his negligent performance, whether or not he had himself been present and in actual direction of the work. The second was whether, Teaman’s contract having been completely performed, he became the owner of the old material by gift of the defendant, and in its removal acted for himself alone without any direction from the defendant. If they should so find from the evidence, then the jury were properly instructed that the defendant would not be liable for Teaman’s negligence in removing his own property in his own way. Had the gift to Teaman been coupled with the requirement of removal, then defendant might have been liable for his acts. Burke v. Shaw, 59 Miss. 443, 42 Am. Rep. 370. But there is nothing in the evidence warranting the application of the principle of that case, by way of instruction to the jury, and there is no occasion either to affirm or deny it. Having found no error in the charge of the court, the judgment must be affirmed with costs; and it is so ordered. Affirmed.