Faren v. T. J. Sellers & Co.

• Decision Date: 01 December 1887
• Docket Number: 9941
• Citation: 39 La.Ann. 1011,3 So. 363
• Parties: MRS. JOHN FAREN, WIDOW AND TUTRIX, v. T. J. SELLERS & CO
• Court: Louisiana Supreme Court

3 So. 363

39 La.Ann. 1011

MRS. JOHN FAREN, WIDOW AND TUTRIX, v. T. J. SELLERS & CO

No. 9941

Supreme Court of Louisiana

December 1, 1887

APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

Harry H. Hall, for Plaintiff and Appellee.

Chas S. Rice, for the Defendants and Appellants.

FENNER J. POCHE, J., takes no part in this opinion and decree having not heard the argument of the case.

OPINION

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 the 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 haste. 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, purlines, braces, etc. The work of its safe demolition was one of great magnitude and requiring skill and care.

Defendants entered into a written contract with one J. H. Lynch, the pertinent portions of which are as follows: that 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 fifty foot spans. In effect, the whole of the internal framing of the building with the exception of that portion known as the gallery section, etc., etc." * * * "The word truss, or section aforenamed is to mean the whole of the frame work which is in position or place between two uprights or posts, and to include plates, braces, jack-rafters, ridge-pieces, purlines, double posts or uprights supporting plates on which foot of seventy-five and fifty foot spans rests, and also includes the main uprights or posts, the whole to be lowered and piled in their respective sizes and scantlings, 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, whose 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 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 afterwards 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 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 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, 614.

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...