Davis v. Summerfield

• Decision Date: 10 November 1903
• Court: North Carolina Supreme Court
• Parties: DAVIS. v. SUMMERFIELD.

45 S.E. 654

133 N.C. 325

DAVIS.

v.SUMMERFIELD.

Supreme Court of North Carolina.

Nov. 10, 1903.

ADJOINING LANDOWNERS — EXCAVATIONS — NEGLIGENCE OF INDEPENDENT CONTRACTOR—LIABILITY OF EMPLOYER—NOTICE.

1. Where an excavation by a lot owner extends below the foundation of an adjoining proprietor's wall, injury to which may be reasonably anticipated to result from the excavation, the owner, failing to exercise proper precautions, is liable for such injuries, though caused by the negligence of an independent contractor.

v 1 See Master and Servant, vol. 34, Cent. Dig. 1259.

2. An instruction not based on the evidence is properly refused.

3. The employment of an independent contractor to make an excavation adjacent to an abutting owner's wall does not relieve the proprietor from the obligation to give the adjacent owner timely notice of the nature and extent of the intended excavation.

Opinion on petition for rehearing. Dismissed.

For former opinion, see 42 S. E. 818.

MONTGOMERY, J. One of the questions presented by this appeal is a most important one, and that question is whether or not the owner of a city lot is liable for an injury done to an adjoining proprietor's brick wall through the negligence of an independent contractor in excavating for the purpose of building a wall against and alongside the adjoining proprietor's wall, and where the excavation extended below the foundation of the wall of the adjoining proprietor. There was evidence offered on the trial tending to show that the excavating which the jury found was the cause of the injury to the plaintiff's wall was done by the defendant himself, and from that evidence the jury might have found that the injury was caused by the direct and active agency of the defendant himself. But for the purposes of this discussion it will be assumed that the contractor performed the work. For what negligent acts of an independent contractor, employed to do work entirely under his own control, which have resulted in injury to third persons, the employer may be liable, is a subject that has often been before the courts. The principle appertaining to that relation in respect to such liability is that. when work is performed by a competent contractor under an agreement which imposed upon him complete control of such persons as he may employ to labor under him, such persons will be the servants of the contractor, and not the servants of the employer, and the employer will not be liable for damages arising from injuries caused by negligence. of the contractor or his workmen, for the reason that the relation of master and servant does not exist between the employer and the contractor's servant. In the domain of the law of negligence the general rule is that, where an injury has been sustained by one through the negligence of another, the party injured must seek his remedy against that one whose actual negligence caused the injury, and against that one only, he being alone liable. There are exceptions to this general rule; as, for instance, where the relation of master and servant exists. In that case the negligence of the servant is to be imputed to the master in cases where the servant, in the performance of the act which causes the injury, is acting within the line of his duty— the scope of his employment. The reasoning upon which this exception rests is perfectly clear, and it is because the servant is acting for the master and by his direction, and the master, having selected and being in control of his servant, makes him his representative in the business in which he is employed. But in the complications of business and social affairs it is often necessary that some who follow special and independent vocations should be intrusted by others, owners of property, with the alteration or improvement of that property, and such persons are employed in many ways under varying conditions; not as servants to follow the method and plans directed and ordered by the employer, but as independent contractors to do work which they are specially fitted to do according to their own ideas and upon their own responsibility. In such a case the duty which the contractor owes arises out of the contract, and not un-der the relation of master and servant or principal and agent, and the maxim, "Qui facit per alium facit per se, " does not apply; and neither public policy nor the relation between the employer and the independent contractor demands or requires that the negligence of either one should subject the other to liability to third persons. And it seems well established in principle that no liability exists in favor of third persons against the innocent party in such cases. Any person who may have been injured has his remedy against the real one who has done the wrong. There are, of course, exceptions to this rule of exemption, well settled and understood; such as in a case where a statute imposes a duty, or where the contract between the employer and the contractor is unlawful, or provides for the execution of an act which, when completed, will create a nuisance. A statutory duty cannot be delegated so as to exempt the one who has taken upon himself the duty imposed from responsibility; and one who creates a nuisance would be forbidden by public policy to shield himself, the real author of the wrong, from responsibility by casting it upon another. There is yet another class of cases where there is an exception to the exemption, and that is where the thing contracted to be done is necessarily attended with danger, however skillfully and carefully performed; said by Judge Dillon to be "intrinsically dangerous." There the employer cannot escape liability for an injury resulting from the doing of the work, although the act performed might be lawful. 2 Dillon on Mun. Corp. § 1029. And there is still another class of cases to be excepted from the exemption, and that is where the contract requires an act to be performed on the...