Drake v. City of Asheville

• Decision Date: 10 June 1927
• Docket Number: 559.
• Parties: DRAKE v. CITY OF ASHEVILLE et al.
• Court: North Carolina Supreme Court

138 S.E. 343

194 N.C. 6

DRAKE v. CITY OF ASHEVILLE et al.

No. 559.

Supreme Court of North Carolina

June 10, 1927

Appeal from Superior Court, Buncombe County; Raper, Special Judge.

Action by W. H. Drake against the City of Asheville and another. From judgment as in case of nonsuit, plaintiff appeals. Affirmed as to named defendant; new trial awarded as to defendant John M. Geary.

One constructing city building held "independent contractor," for whose negligence city was not responsible.

Action to recover damages for personal injury. Plaintiff alleged that the defendant Geary, as vice principal of his codefendant, had authority over carpenters and other laborers engaged in putting up a building for the city; that plaintiff was one of the carpenters employed by the defendants and in the prosecution of his work was required to case certain windows in the building; that a scaffold was necessary; that plaintiff and another constructed a scaffold out of material furnished by the defendants; that the material was defective that the defendants negligently failed to furnish material which was suitable for a scaffold; that after the scaffold was built plaintiff went upon it in the discharge of his duties; that owing to defective and unfit material the scaffold gave way; and that he was thrown to the concrete floor eight feet below and was seriously injured. Among several other defenses the city alleged that Geary was an independent contractor for whose negligence, if any, it was not responsible; and Geary, denying all allegations of negligence, contended that in no aspect of the testimony was there evidence of negligence on his part. At the conclusion of the evidence the court gave judgment as in case of nonsuit, and the plaintiff excepted and appealed.

The contract between the defendants was as follows:

"That the said party of the first part (Geary) for and in consideration of one dollar ($1.00) to him in hand paid receipt of which is hereby acknowledged, does agree with the party of the second part (city) to erect, build construct and supervise the erection, building and construction and purchasing of the necessary material and supplies, the hiring and the supervision of the necessary mechanics and laborers, to erect the new city market, Fire and Police stations just south of the present city hall between Market and Spruce streets in the city of Asheville and on the present property owned by said city.

That the party of the first part guarantees that the cost of said building shall in no case exceed three hundred and ten thousand dollars ($310,000) and that said building will be completed within a period of eight (8) months from the date the work is commenced, due allowance to be made for strikes, weather conditions, etc., beyond the control of the party of the first part.

That the said party of the first part is hereby allowed the privilege of changing and altering the present plans and specifications consistent with good workmanship and with the idea in view of erecting a satisfactory type of building for the purposes said building is to be used, at the very lowest cost consistent with good workmanship and a satisfactory building. Such cost made necessary by additions and betterments is not to be considered as part of the guaranteed cost of $310,000, but shall be approved by the party of the second part as additions to the contract; also the party of the first part does hereby agree to make such changes, additions and betterments at cost and without additions to his original fee of $20,000.

The party of the second part hereby agrees to pay all material bills as presented and O. K.'d by the party of the first part.

The party of the first part hereby agrees to give a good and sufficient bond for the faithful performance of the contract hereby agreed upon between the party of the first part and the party of the second part.

The party of the second part hereby agrees to pay the party of the first part a fixed fee in the sum of $20,000 for the faithful performance of his contract, said fee to be paid at such times as the party of the first part requests, but in no case at any time during the construction of the building to exceed eighty per cent. (80%) of the total fee hereinbefore mentioned, and the final twenty per cent. (20%) to be paid upon the completion of the building and upon acceptance of the building by the party of the second part.

In witness whereof the party of the first part and the party of the second part have hereunto affixed their hands and seals, this the 12th day of June, 1924."

Mark W. Brown and J. Scroop Styles, both of Asheville, for appellant.

R. R. Williams, of Asheville, for city of Asheville.

Merrimon, Adams & Adams, of Asheville, for Geary.

ADAMS J.

That the defendant Geary was an independent contractor is one of the defenses on which the city of Asheville relies, and if this defense is established the merits of others which are claimed to be available will not be discussed. This court has often applied the doctrine, subject of course to certain exceptions, that for the actionable negligence of an independent contractor the person for whom the work is done cannot be made to respond in damages. Craft v. Timber Co., 132 N.C. 152, 158, 43 S.E. 597; Denny v Burlington, 155 N.C. 33, 70 S.E. 1085; Greer v. Construction Co., 190 N.C. 632, 635, 130 S.E. 739. It has endeavored also to maintain the equally familiar principle that the interpretation of a contract which is free from ambiguity involves a matter of law for the decision of the court and not a matter of fact for the determination of the jury. Young v. Lumber Co....