Falender v. Blackwell

• Decision Date: 27 November 1906
• Docket Number: 5,849
• Citation: 79 N.E. 393,39 Ind.App. 121
• Parties: FALENDER ET AL. v. BLACKWELL, ADMINISTRATOR
• Court: Indiana Appellate Court

79 N.E. 393

39 Ind.App. 121

FALENDER ET AL. v. BLACKWELL, ADMINISTRATOR

No. 5,849

Court of Appeals of Indiana

November 27, 1906

From Superior Court of Marion County (66,000); James M. Leathers Judge.

Action by John J. Blackwell, as administrator of the estate of Michael McGlynn, deceased, against Julius Falender and others. From a judgment for plaintiff, defendants appeal.

Affirmed.

F Winter, for appellants.

Henry Warrum and M. A. Ryan, for appellee.

OPINION

WILEY, P. J.

Appellee recovered a judgment below against appellants, based upon their alleged negligence, which resulted in the death of appellee's decedent. Appellee's complaint was in two paragraphs, to the second of which a demurrer was overruled. Appellants' answer was a general denial. Overruling the demurrer to the amended second paragraph of the complaint and the motion for a new trial are assigned as errors. It is averred in the amended second paragraph of complaint that appellants employed John C. Nolan to break and reduce into small pieces certain heavy pieces of iron and steel machinery, engines, and fly-wheels located on a certain tract of ground within the city of Indianapolis; that said Nolan immediately, pursuant to said contract of employment, proceeded to do the work required of him, and that he undertook to break up said iron machinery, etc., by exploding large charges of dynamite "under, against, and upon said iron," and continued such explosions and the breaking up of said iron until August , 1903; that the iron lay in an open place on the grounds of the Premier Steel Works, immediately west of south Capitol avenue and north of west Merrill street; that the charges used by Nolan to break the same were very large, varying from one-half pound to three pounds of dynamite to each charge, and frequently large pieces of iron were hurled by the explosions a long distance, to wit, 200 feet; that said explosions took place in the city of Indianapolis within 150 feet of streets, alleys, residences, and public grounds, to the great hazard and danger of travelers and other persons; that appellants at the time they employed Nolan and thereafter knew that he was wrongfully and carelessly using dynamite in breaking up said wheels, machinery, etc., to the great hazard and danger of people on the streets, alleys, and public places of said city; that they provided said Nolan with dynamite for such use, and from time to time gave him money to be used in the purchase of dynamite for such use, and well knew that such explosions under and against the iron "was highly dangerous to the life and limbs of persons on the alleys and streets of said city;" that on August , 1903, the decedent was standing in a public alley immediately adjoining the tract or parcel of ground upon which the defendants' iron was located, said alley lying between a row of houses fronting on Capitol avenue, and the tract on which the iron was located; that while said decedent was in said public alley said Nolan, with the knowledge and connivance and under the directions of the defendants, negligently and carelessly exploded, discharged, and shot off a large and heavy charge of dynamite under one of their pieces of iron, whereby a piece of said iron so broken off by such explosion was thrown and hurled through the air a distance of 200 feet, striking the decedent, and so injuring him that he died from the effect thereof. The complaint then avers that the decedent left a widow and children, who sustained damages by reason of his death, etc.

In attempting to connect appellants with the negligence resulting in the death of appellee, in the amended second paragraph of complaint the following words and phrases are to be found: "By the use and means of dynamite," "and pursuant to said contract of employment," and "and connivance and under the directions," etc., of appellants. The original second paragraph of complaint was amended by the insertion of the above words and phrases by leave of the court, just before the commencement of the trial. Thereupon appellants moved that the court require appellee to separate the paragraph as amended into two paragraphs, embracing in one paragraph the facts stated, showing that the appellants had contracted for the doing of unlawful work, or for the doing of lawful work in an unlawful manner; and in the other, that they had directed and controlled the contractor as to the method and manner of doing the work, and that the work had been done by him negligently and carelessly with their connivance and under their direction. This motion was overruled, and an exception saved. Appellants urge two objections to the amended second paragraph of the complaint: (1) That the facts pleaded show that Nolan was in charge of the work as an independent contractor. This proposition is based upon the allegation in the complaint that appellants "employed and contracted with him to do and perform the work." It is urged that there is no averment, either general or specific, that he was their servant, and that they are not responsible for his negligent acts done in his capacity as an independent contractor.

(2) That the averment that Nolan "negligently and carelessly exploded a charge of dynamite," with the knowledge and connivance and under the direction of the appellants, does not show that they had assumed control of the method and means of doing the work, or had subjected Nolan to their control so as to substitute their will for his, and make him their servant; that such allegations are not equivalent to the general allegation that he did the negligent act as their servant.

We recognize the rule that where one person contracts with another to do and perform certain work or labor, and the person for whom the work is done has no control or management thereof, the one who undertakes the work becomes an independent contractor; and if injury results from his negligent acts, and the employer has no connection with such work or acts, the contractor becomes the responsible party. It seems to us that from the averments of the complaint the work which Nolan was to do was intrinsically dangerous. It is shown that this work was to be done by the use and means of dynamite; that the explosions took place within 150 to 200 feet of public highways and residences, where people had a right to be and were; that said work was done pursuant to the contract of employment, and with the connivance and under the directions of the appellants. As a matter of pleading we are inclined to the view that the amended second paragraph of complaint does not show that Nolan was an independent contractor. The contract of employment, as disclosed by the complaint, did not merely look to the result to be attained, but also to the means and method by which the work was to be done, and which, according to the complaint, were to be determined by appellants. It very clearly appears that in using dynamite to accomplish the end, Nolan represented the will of the appellants, and therefore did not act independently and of his own volition, and in this respect he must be regarded as having acted strictly within the line of his employment and the duty he owed to appellants. Wabash, etc., R. Co. v. Farver (1887), 111 Ind. 195, 64 Am. Rep. 696, 12 N.E. 296; Powell v. Construction Co. (1890), 88 Tenn. 692, 13 S.W. 691, 17 Am. St. 925; Jensen v. Barbour (1895), 15 Mont. 582, 39 P. 906.

The work in which Nolan was engaged, by virtue of the means employed, was hazardous, and it was being performed within dangerous proximity to the persons who had a right at any time to be upon the public highways, or at or in the residences adjoining thereto. If we are wrong in holding that under all the allegations of the complaint it does not appear that Nolan was an independent contractor, yet if it be conceded that he was, the rule absolving an owner from liability for an independent contractor's negligence does not prevail where the work contemplated was intrinsically dangerous or a nuisance. 16 Am. and Eng. Ency. Law (2d ed.), 201, and cases cited; City of Anderson v. Fleming (1903), 160 Ind. 597, 66 L. R. A. 119, 67 N.E. 443; Dooley v. Town of Sullivan (1887), 112 Ind. 451, 2 Am. St. 209, 14 N.E. 566; Zimmerman v. Baur (1895), 11 Ind.App. 607, 39 N.E. 299; Dehority v. Whitcomb (1895), 13 Ind.App. 558, 41 N.E. 1059; Fitz Simons & Connell Co. v. Braun (1902), 199 Ill. 390, 65 N.E. 249, 59 L. R. A. 421.

It should also be remembered in considering the sufficiency of this paragraph of complaint that the negligence complained of, and which occasioned the injuries, was the result of performing the work which Nolan was employed to do, and that he did it in the manner and by the means which his contract called for. See note to Thomas v. Harrington (1903), 65 L.R.A. 742; Carman v. Steubenville, etc., R. Co. (1854), 4 Ohio St. 399. If, for no other reason, this paragraph would be good as against a demurrer, by reason of the averment that "Nolan, with the knowledge and connivance and under the direction of the appellants, carelessly exploded, discharged, and shot off" the charge of dynamite. Our conclusion is that the demurrer was properly overruled. The questions presented by the motion for a new trial relate to the sufficiency of the evidence to support the verdict, the admission and rejection of certain evidence, and to the giving of certain instructions.

It is urged that there is no evidence showing or tending to show that appellants directed or controlled Nolan as to the method and means of doing the work, either generally or in respect to the particular explosion which it is claimed caused the injury. Also that there is no evidence that Nolan submitted in any way to the control and direction of appellants, or adopted or acted upon any...