Davis Bakery Inc v. Dozier

• Citation: 124 S.E. 411
• Case Date: September 25, 1924
• Court: Supreme Court of Virginia

124 S.E. 411

DAVIS BAKERY, Inc.,
v.
DOZIER.

Special Court of Appeals of Virginia.

Sept. 25, 1924.

Error to Circuit Court of City of Norfolk.

Action by A. S. Dozier against the Davis Bakery, Incorporated. Judgment for plaintiff, and defendant brings error. Reversed.

Page, Page & Page, of Norfolk, for plaintiff in error.

H. G. Cochran, of Norfolk, for defendant in error.

HOLT, J. This is an action brought on account of personal injuries sustained by the plaintiff, in which a recovery was had in the court below. For convenience, the plaintiff below will be designated here as the plaintiff, and the defendant below as the defendant.

The facts in this case deemed material are as follows: Davis Bakery, Incorporated, in 1919 owned a building in the city of Norfolk, fronting on Brewer street and extending through to Bank. This building it had used as a bakery, but it had abandoned that work and gone out of business. Through negotiations begun early in August of that year, it leased it to the American Grocery

[124 S.E. 412]

and Baking Company, Incorporated. The lease bears date October 1, 1919, and on its face went into effect as of that date. Possession, however, was turned over to the lessee about 10 days before this. For reasons which it is not necessary to detail, Charles Davis, president and director of the lessor company, in September, employed one W. B. Mueller to paint a skylight thereon. Mueller was an experienced mechanic and contractor who had for 50 years been engaged on work of a kindred character. He employed the plaintiff to do this work, and one William Sturgis to assist him. This skylight is of the ordinary A type, as appears from a photograph in the record, and was built by the Bohn Roofing Company for the defendant, under a 10 years' guarantee, a little more than four years before the accident complained of. The base of this A rests on a box-like structure about four feet high. From its eave to its apex there is a rise of 1 foot, 8 inches; its base is 7 feet, 10 inches. The length does not appear, but the skylight proper was of glass, held by metal ribs 21 inches apart. These metal ribs were of a lighter gauge than is ordinarily used in structures of this kind, but this could not be seen in an ordinary inspection. They were rusted at the base of eaves, and the structure to which they were attached or on which they rested, and which itself was a wooden frame covered with tin, was in a rotting condition.

Across this skylight the plaintiff placed a plank upon which he rested his weight while at work, and his helper, Sturgis, at the same time went upon this skylight on the other side, so that it was called upon to bear the weight of both men-at once. While they were thus engaged, it gave away. The plaintiff fell to the floor and was injured. This accident, the declaration charges, occurred on the 1st of October, 1919. The plaintiff testified that the defects to which it is attributed could not be seen by ordinary inspection, though evidence on his behalf was introduced to show they were open and obvious. The defendant itself knew nothing about this.

A number of errors are assigned. For convenience, the second will be considered first. It is as follows:

"The defendant, after demurring and pleading, asked leave of the court to withdraw the plea, and demurred and for leave to appear specially and move to quash the writ, because it shows on its face that it was not legal service on the Davis Bakery, Inc., which motion, as will appear from the record, was denied, and the defendant excepted and assigns the action of the court in this behalf as error No. 2."

The service itself is as follows:

"By direction of the attorney for the plaintiff, I, this 20th day of September, 1920, served a copy hereof on I. A. Page, director of Davis Bakery, Inc., in the city of Norfolk, Va., where he resides and his place of business is located, and at the time such service was made, I. A. Page denied any connection with Davis Bakery, Inc., either directly or indirectly, and at the same time and place I executed a copy hereof on I. A. Page individually.

"Wm. M. Hannan, City Sergeant,

"By C. H. Tumbleson, Deputy."

This service the defendant says is absolutely void, and that this can be shown at any time during the trial, citing Burks' Pleading & Practice (2d Ed.) pp. 318, 319; Johnston v. Pearson, 121 Va. 453, 93 S. E. 640. An inspection show3 it to be regular upon its face. Section 6063, Code 1919. The disclaimer made by Mr. Page amounts to nothing. It is surplusage and no part of the return. At the most, it is a statement out of court of a fact which might or might not be proven at the hearing. The return of the officer is to be taken as true. Preston v. Kindrick, 94 Va. 760, 27 S. E. 588, 64 Am. St. Rep. 777. As a matter of fact, Mr. Page himself admitted during the taking of his testimony that he was a director of this corporation before it went out of active business. Moreover, in New River Mineral Co. v. Painter, 100 Va. 507, 42 S. E. 300, the court said:

"It is a well-established rule of practice that by appearing to the action the defendant waives all defects in the process and in the service thereof. The decisions go further, and imply such a waiver from the defendant's taking or consenting to a continuance as fully as they do from his pleading to the action. The object of the writ is to apprise the defendant of the nature of the proceeding against him. His taking or agreeing to a continuance is evidence of his having made himself a party to the record, and of his having recognized the case as in court. It is too late for him, afterwards, to say that he has not been regularly brought into court."

This assignment of error is without merit.

Assignments 1 and 3 deal with the demurrers to the original and amended declarations, while the eighth is based upon the fact that the trial court refused to set aside the verdict of the jury as contrary to the law and the evidence. The amended declaration in any view of the case sets out an action of master and servant, and so is good upon demurrer. The major defense stressed is that the defendant was under no contractual relation with the plaintiff, and owed him no duty. This is distinctly set up in the eighth assignment of error, and will be considered there. The demurrers will not be considered further.

The law relative to independent contractors is thus stated in Talley v. Drumheller, 135 Va. 186, 115 S. E. 517:

"An independent contractor may be defined as one who, in the course of an independent occupation, prosecutes and directs the work himself, using his own methods to accomplish it.

[124 S.E. 413]

Generally, where an independent contractor is employed to perform a work, lawful in itself and not intrinsically dangerous, the company, if it is not negligent in selecting the contractor, is not liable for the wrongful acts or negligence of such contractor. It must appear that it either exercised or reserved the right to exercise control over the work, and had the power to choose, direct, and discharge the employees of the contractor. In general, it may be said that the liability of the company depends upon whether or not it has retained control and direction of the work."

That Mueller was an independent contractor and that the plaintiff was his employer is proven in the evidence. It is clear that defendant retained no manner of control over the premises or over the manner in which the work was to be done, and was guilty of no negligence in selecting its contractor.

There are no contractual rights and liability between owners and employees of independent contractors. Such as exist grow out of other principles. This case differs sharply from that character of cases represented by Walton, Witten & Graham v. Miller, 109 Va. 210, 63 S. E. 458, 132 Am. St. Rep. 908, and by Vickers v. Kanawha & W. V. R. Co., 64 W. Va. 474, 63 S. E. 367, and 20 L. R. A. (N. S.) 793, 131 Am. St. Rep. 929. There employees of the owner were injured through the negligence of the independent contractor. In such cases the owner or master was under a...