Cary v. Sparkman & McLean Co.

• Decision Date: 08 March 1911
• Citation: 113 P. 1093,62 Wash. 363
• Court: Washington Supreme Court
• Parties: CARY v. SPARKMAN & McLEAN CO. et al.

113 P. 1093

62 Wash. 363

CARY v. SPARKMAN & McLEAN CO. et al.

Supreme Court of Washington

March 8, 1911

Department 2. Appeal from Superior Court, King County; R. B. Albertson Judge.

Action by W. S. Cary, as guardian ad litem of Leila Cary, a minor against the Sparkman & McLean Company and another. From a judgment for plaintiff against the defendant named, it appeals. Reversed and remanded.

William W. Wilshire, for appellant.

Brady &amp Rummens and Leroy V. Newcomb, for respondent.

MORRIS J.

Appeal from a judgment awarding damages for personal injuries. Appellant is the owner of property in Seattle, situate on the west side of Fifth avenue between Union and Pike streets, and in August, 1908, let a contract to defendant Cannon for the erection of a six-story building upon the lot, which building is now known as the Hotel Metropole. Cannon immediately entered into possession of the property and commenced the construction of the building under his contract, whereby he obligated himself to provide all the materials, furnish all the labor, construct the building according to certain plans and specifications, and to deliver the building when fully constructed and completed to appellant. Under the contract appellant reserved no power of control over the contractor in the construction of the building, other than the right of such general supervision as might be necessary in seeing that the building was constructed in accordance with the plans and specifications. On the evening of January 16, 1909, while the building was in process of construction, the minor respondent was walking up Union street when, discovering that her skirt was unfastened, she turned north on Fifth avenue, seeking a convenient place where she might arrange her clothing free from observation. The darkest part of the street would be at a point midway between Union and Pike streets and in front of this uncompleted structure. Reaching such point, she stepped back for the purpose of getting more completely in the shadow of the building, and fell into the basement through an unguarded opening that had been left for the purpose of putting in a window to admit light and air into the basement and received the injuries complained of. The building was built flush up to the property line, and the opening through which respondent fell was on a level with, and extended up to, the inner line of the sidewalk. The contractor, although made a party defendant, was not served, so that the case proceeded against appellant alone, upon a general charge of negligence in permitting the opening along the inner edge of the sidewalk to remain unguarded. The defense was that the negligence complained of was that of the contractor alone; appellant setting forth in detail the general facts heretofore referred to, in regard to its ownership of the lot, the making of the contract, the exclusive possession of the property by Cannon under the contract, his construction of the building according to plans and specifications, and his full charge of the construction, except in so far as appellant reserved the right to insist upon a full compliance with the contract. In other words, it sought to escape liability upon the ground that Cannon was an independent contractor. Appellant sought to have the trial court so rule upon motion for judgment, request for instructions, and in moving for a new trial, and the only error that need be discussed by us is the refusal of the court below to so hold, since our holding upon such question will dispose of the whole case. We must, therefore, first determine if Cannon was an independent contractor.

This relation is defined in Engler v. Seattle, 40 Wash. 72, 82 P. 136, quoting from 16 Am. & Eng. Ency. Law (2d Ed.) 187, and cases cited, as: 'Generally speaking, an independent contractor is one who, in rendering services, exercises an independent employment or occupation, and represents his employer only as to the results of his work, and not as to the means whereby it is to be accomplished. The word 'results,' however, is used in this connection in the sense of a production or product of some sort, and not of service. A reservation by the employer of the right by himself or his agent to supervise the work for the purpose merely of determining whether it is being done in conformity to the contract does not affect the independence of the relation.' The case further cites Casement v. Brown, 148 U.S. 615, 13 S.Ct. 672, 37 L.Ed. 582, to the effect that the relation of independent contractor is established when under prepared plans and specifications the contractor agrees to build, furnishing his own employés and material, and to produce a completed structure by means of his own labor and material. To the same effect is Larson v. American Bridge Co., 40 Wash. 224, 82 P. 294, 111 Am. St. Rep. 904. In Burns v. McDonald, 57 Mo.App. 599, we find this definition, taken from 2 Thompson on Negligence, 899: 'The general rule is that one who has contracted with a competent and fit person, exercising an independent employment, to do a piece of work, not in itself unlawful or attended with danger to others, according to the contractor's own methods, and without his being subject to control except as to the results of his work, will not be answerable for the wrongs of such contractor, his subcontractors, or his servants, committed in the prosecution of such work. An independent contractor, within the meaning of this rule, is one who renders service in the course of an occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished. The contractor must answer for his own wrongs and the wrongs committed in the course of his work by his servants.' The same rule is announced generally in Boardman v. Creighton, 49 A. 663. Upon the general rule that those who undertake, as in this instance, the construction of an entire building, having full charge of the work, the furnishing of labor, the supply of material, coupled with exclusive possession, save the right of the owner to come upon the premises for the purpose of ascertaining and insisting upon a full compliance with the contract, are independent contractors, as that term is here used and defined, see Schwartz v. Gilmour, 45 Ill. 457, 92 Am. Dec. 227; Pfan v. Williamson, 63 Ill. 18; Kepperly v. Ramsden, 83 Ill. 354; Richmond v. Sitterding, 101 Va. 354, 43 S.E. 562, 65 L. R. A. 445, and cases cited in note 6, at page 461, 99 Am. St. Rep. 879.

Upon the first question reserved, we are of the opinion that Cannon was an independent contractor, and that no liability would attach to the owner of the premises upon which the building was erected for the negligence of the contractor, unless the case before us falls within some recognized exception to this general rule, and these exceptions are as definite of statement and as clear in their application as the rule itself. 'Generally speaking, where the act which causes the injury is one which the contractor is employed to perform, and the injury results from the act of performance, and not from the manner of performance, or where the contractor is employed to do an act unlawful in itself, or where the injury is due to defective plans or methods, pursuant to which the work is done, or where the work is inherently or intrinsically dangerous in itself and will necessarily or probably result in injury to third persons, unless measures are adopted by which such consequences may be prevented, and in other like cases, a party will not be permitted to evade responsibility by placing an independent contractor in charge of the work.' Kendall v. Johnson, 51 Wash. 477, 99 P. 310; Seattle Lighting Co. v. Hawley, 54 Wash. 137, 103 P. 6; Engle v. Eureka Club, 137 N.Y. 100, 32 N.E. 1052, 33 Am. St. Rep. 692; Boomer v. Wilbur, 176 Mass. 482, 57 N.E. 1004, 53 L. R. A. 172. So, where the ordinary method of doing the work creates a nuisance, the exception prevails. City of Moline v. McKinnie, 30 Ill.App. 419; Cuff v. Newark & N.Y. R. Co., 35 N. J. Law, 17, 10 Am. Rep. 205; Ryan v. Curran, 64 Ind. 345, 31 Am. Rep. 123.

It is...