Dehority v. Whitcomb

• Citation: 41 N.E. 1059,13 Ind.App. 558
• Decision Date: 19 November 1895
• Docket Number: 1,550
• Parties: DEHORITY v. WHITCOMB
• Court: Indiana Appellate Court

41 N.E. 1059

13 Ind.App. 558

DEHORITY v. WHITCOMB

No. 1,550

Court of Appeals of Indiana

November 19, 1895

From the Madison Circuit Court.

Judgment affirmed.

Goodykoontz & Ballard, for appellant.

Chipman & Walker, for appellee.

OPINION

LOTZ, J.

The appellee, plaintiff below, recovered a judgment against the appellant for personal injuries sustained on account of the alleged negligence of appellant.

The first assignment of error calls in question the sufficiency of the complaint to withstand a demurrer for want of facts.

The complaint avers that in November, 1892, the defendant was engaged in the erection and construction of a two-story brick business block in the city of Elwood, the property of the defendant; that in the erection and construction of the building the defendant employed one E. R. Coxen, a contractor of Said City, with his workmen, to do the carpenter work on the building, the defendant paying Coxen for the men so employed; that in the erection and construction of said building the defendant had the management and control of the same, he employing the said Coxen and his force of men to do the work, the said Coxen and his men being under the supervision and control of the defendant, and the defendant paying a certain amount per day for each workman so engaged thereon; that the plaintiff was in the employ of said Coxen and under the direction of said Coxen and the defendant, and was at work on said building as a carpenter that said building was being covered with slate; that the plaintiff was engaged at work in the second story of the building, and that while so engaged, without the knowledge of the plaintiff, the defendant caused to be placed on the roof of said building, over the place where the plaintiff was at work, a large quantity of roofing slate; that in the erection and construction of the building the defendant had no plans or specifications therefor prepared by an architect, but had the building and all parts thereof constructed upon plans prepared by himself; that in the erection and construction of said building the defendant was negligent and careless in this: that he did not provide proper support for and brace the roof of said building so as to resist and bear the weight to be placed thereon, and by reason of the negligent, careless, improper and insufficient plan and construction of said building, and by reason of the defendant's carelessness and negligence in placing and causing to be placed on the roof of the building, over the place where the plaintiff was at work, a large quantity of slate, the roof at said place gave way and the roof and slate fell upon the plaintiff and he was thereby crushed to the floor, his right leg broken, his ribs broken and his skull fractured, all without any fault or negligence on his part.

Appellant's counsel insist that the averments do not show that the defendant owed the plaintiff any duty; that no relation of master and servant or of principal and agent is shown to exist between them; that Coxen, according to the averments was an independent contractor, and that the appellee was his servant.

It is well settled that where one lets a contract to another to do a particular lawful work, reserving to himself no control over such work, except the right to require it to conform to the contract or a particular standard when completed, he is not liable for the negligence of the contractor. Park v. Board, etc., 3 Ind.App. 536, 30 N.E. 147; Ryan v. Curran, 64 Ind. 345; Wabash, etc., R. W. Co. v. Farver, 111 Ind. 195, 12 N.E. 296; New Albany, etc., v. Cooper, 131 Ind. 363, 30 N.E. 294. But this rule does not apply where the work contracted to be done is unlawful or a nuisance per se, nor where the contract directly requires the performance of work intrinsically dangerous, however skillfully performed. Park v. Board, etc., supra.

The work described in the complaint is neither unlawful nor intrinsically dangerous. The complaint,...