BOWYER & JOHNSON CONSTRUCTION COMPANY v. White

• Decision Date: 13 May 1958
• Docket Number: No. 16882.,16882.
• Citation: 255 F.2d 482
• Parties: BOWYER & JOHNSON CONSTRUCTION COMPANY, and Cordova Sand & Gravel Company, Appellants, v. Joe WHITE et al., Trustees of Pleasant Grove C. M. E. Church in DeSoto County, Mississippi, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

255 F.2d 482 (1958)

BOWYER & JOHNSON CONSTRUCTION COMPANY, and Cordova Sand & Gravel Company, Appellants, v. Joe WHITE et al., Trustees of Pleasant Grove C. M. E. Church in DeSoto County, Mississippi, Appellees.

No. 16882.

United States Court of Appeals Fifth Circuit.

May 13, 1958.

E. Cage Brewer, Jr., William O. Luckett, Semmes Luckett, Brewer & Brewer, and Roberson, Luckett & Roberson, Clarksdale, Miss., Leo Bearman, Memphis, Tenn., Robert M. Burton, Memphis, Tenn., of counsel, for appellants.

Joel P. Walker, Jr., and Chatham & Walker, Hernando, Miss., for appellees.

Before HUTCHESON, Chief Judge, and TUTTLE and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This is an appeal from a judgment in favor of the Trustees of the Pleasant Grove Colored Methodist Episcopal Church entered by the Court after a non-jury trial against both a highway Contractor¹ and its Subcontractor² for destruction of this rural Mississippi Church by fire. Both Contractor and Subcontractor appeal from the joint judgment which, if paid by either, entitles the other under Mississippi law to contribution.

The case has its unusual aspects. Not the least of these is that each appellant urges that the plaintiffs (the Church) should prevail. The condition of this generosity is, of course, that each asserts that not it, but its co-defendant should be the one to pay. But the plaintiffs, accepting aid from whatever source and to whatever extent available, find themselves unable to translate this into a single effective judgment. The Contractor simply states that the plaintiffs should recover the full amount of the judgment ($7,250), but against the Subcontractor only. The Subcontractor, on the other hand, asserts that it should pay nothing for the destruction of the Church building itself since there was inadequate evidence to sustain the amount allowed for it ($6,000) and that as to the balance ($1,250) the judgment fixing liability should be sustained provided it remains jointly against Subcontractor and the Contractor. Like weights on the apothecary's scale, Contractor and plaintiffs are on one side, Subcontractor on the other on damages, while Subcontractor and plaintiffs are on one side, Contractor on the other on liability. Pursuing this figure further, in this state of equilibrium, withdrawing the plaintiff as the common weight should reveal which way the scales will tip between the two defendants.

And the merits of the cause show, we believe, that this is the correct approach independent of the tactical concessions of the competing defendant. For if the question of imputation of fault is put to one side, the record is clear that the Court had ample basis for the finding that the Church was destroyed by the negligent failure of the Subcontractor properly to attend the small fire it had intentionally set in cleaning up right-of-way trash, or in completely putting out the fire after it had burned through the adjacent cemetery and Subcontractor thought that it had been extinguished.

Equally so, we think, is the Court's finding of a $6,000 value for the building. This holding withstands the scrutiny of clearly erroneous, Fed.Rules Civ.Proc. rule 52(a), 28 U.S.C.A. Starting with the sensible premise that there is in reality no genuine "market" for rural churches of this kind and character, the Court, after the value of the land was equalized by adequate proof of value "before and after," J. M. Griffin & Sons, Inc., v. Newton Butane Gas & Oil Co., 210 Miss. 797, 50 So.2d 370, was clearly authorized to give full application to Mississippi principles which take recognition of the practicable factors which may be considered. Sears, Roebuck & Co. v. Creekmore, 199 Miss. 48, 23 So.2d 250, 253. The Court was entitled to, and obviously did, take into account the uncontradicted testimony, both photographic and oral, from interested as well as disinterested witnesses familiar with this Church. They were unanimous that this congregation throughout its long life had taken exceptional care of this building by painting and maintaining it, and adding to it, from time to time, improvements which made it more usable. An estimate of value at $12,000 was given by one witness having some familiarity with building costs, and it was established that a new Church building was being constructed at a cost of some $12,000. Mississippi considers³ that many factors may be evaluated, and as it is apparent that the Court in a practical way took into account age and obsolescence and actual depreciation, the figures on replacement cost, together with this other evidence, fully warranted the finding of $6,000.

We come then to the real controversy: was there any basis for holding the Contractor liable?

At the time of the occurrence, no employee of Contractor was on or near the project. It was not until months later that Contractor, for the first time, had any of its own employees at this job site. For a substantial period of time immediately before and after the occurrence, all of the work was done by employees of Subcontractor under the actual direction and control of Subcontractor's supervisory employees. The trash fire was started by Subcontractor's employees. Subcontractor's employees fought the fire when it got out of hand. Subcontractor's employees failed adequately to extinguish the fire.

If liability may be imposed on Contractor, it must be on some basis other than simple agency. For under the traditional principles of the right to exercise control over the manner and means of performing the work, which test Mississippi outlines with considerable refinement, Kisner v. Jackson, 159 Miss. 424, 132 So. 90, the relationship between Contractor and Subcontractor was that of an independent contract and not master-servant, principal-agent.

Plaintiffs and Subcontractor put forward two reasons why this conclusion is no real obstacle. First, the contract forbade subcontracting without express approval and imposed an unconditional liability on Contractor for all losses. Second, the work contracted for, envisaging some fires as it must have, was inherently dangerous.

With respect to the first, we do not think that the contract with the County prohibited subcontracting. The contract itself is silent. Reference is made to subcontractors only in the Proposal⁴ which, on a prescribed Mississippi form, had to be filled out and filed with a bid deposit as a bid. At most, it made a representation as to the present only, and it contained no warranty or promise against subsequent subcontracts if the bid were accepted. The bid was submitted on Form 902 October 4, 1955, and accepted the same day by the execution of the formal contract (on Form Section 903). It was not until March 1 and 10, 1956, that the subcontract was tendered and accepted. Assuming that, as the base contract states: "* * * the proposal for the contract, * * * shall be held to be * * * a part of this contract by specific reference * * as if each * * * had been set out fully herein * * *," this was a part of the contract it does not, in our judgment, prohibit the subsequent use of sub-contractors at least in such a way as to impose a special liability on the contractor for having done so. The County and the State of Mississippi may well have their remedies, but the mere making of an unauthorized subcontract, without more, does not subject the contractor to liability to a third person for acts of the subcontractor. Walters v. American Bridge Co., 234 Pa. 7, 82 A. 1103; Seattle Lighting Co. v. Hawley, 54 Wash. 137, 103 P. 6; Wilkinson v. Light, Heat & Water Co., 78 Miss. 389, 28 So. 877; Wade v. Gray, 104 Miss. 151, 61 So. 168, 43 L.R.A.,N.S., 1046; Holmes v. T. M. Strider & Co., 186 Miss. 380, 189 So. 518, 123 A.L.R. 1190. This result is not changed by the general clause⁵ imposing responsibility "for all loss or damage arising out of the nature of the work." This clause does not impose upon Contractor any greater liability for the acts of a subcontractor than would be imposed upon it directly. Clearly this clause was not intended to be the imposition of an absolute liability on Contractor for injuries and damages sustained by members of the public regardless of negligence. This undertaking is between the County and Contractor alone.

Nor, we think, does Fair Lumber Co. v. Weems, 196 Miss. 201, 16 So.2d 770, 151 A.L.R. 631, or cases like it, Crisler v. Ott, 72 Miss. 166, 16 So. 416; Transcontinental Gas Pipe Line Corp. v. Myrick, Miss., 51 So.2d 475, warrant imposing liability here on the Contractor. As we pointed out in analyzing the principle of the Weems case in applying it to destruction of Florida timber, Rayonier, Inc., v. Bryan, 5 Cir., 249 F.2d 405, 408, this non-delegable duty to exercise due care not to inflict unnecessary damage on the grantor's property arises out of the relation analogous to that of landlord and tenant. Here no such relationship exists. The plaintiffs are complete strangers to the Contractor as well as to the Subcontractor.

This leaves as the only remaining basis of liability the claim that the work contracted for was inherently dangerous. Whether fire, as such, is deemed by Mississippi to be within the class of inherently dangerous instrumentalities, we need not determine. Its dangers are, of course, recognized for "All must know that fire is a dangerous and destructive agency." Gloster Lumber Co. v. Wilkinson, 118 Miss. 289, 79 So. 96, 97. But at the same time, imposing no presumptions of negligence for fire damage. Mississippi apparently treats it no different from other forces. Robinson v. Turfitt, 192 Miss. 160, 4 So.2d 884, cited 24 A.L.R.2d 255.

Even if fire is inherently dangerous, this was not a contract to do such work. We may assume that the evidence supports an implied finding that those engaged in highway construction work may frequently light fires to burn trash or debris. There is no showing here, however, that such fires are necessary or that...