Gibilterra v. Rosemawr Homes, A--572

• Decision Date: 04 October 1954
• Docket Number: No. A--572,A--572
• Citation: 32 N.J.Super. 315,108 A.2d 295
• Parties: Virgil GIBILTERRA, Plaintiff-Appellant, v. ROSEMAWR HOMES, Inc., a corporation of the State of New Jersey et al., Defendants-Respondents. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 315

32 N.J.Super. 315

108 A.2d 295

Virgil GIBILTERRA, Plaintiff-Appellant, v. ROSEMAWR HOMES, Inc., a corporation of the State of New Jersey et al., Defendants-Respondents.

No. A--572.

Superior Court of New Jersey Appellate Division.

Argued Sept. 20, 1954.

Decided Oct. 4, 1954.

Samuel Doan, Paterson, for plaintiff-appellant (Archibald Kreiger, Paterson, on the brief).

James B. Emory, Jersey City, for defendant-respondent Rosemawr Homes, Inc. (Emory, Langan & Lamb, Jersey City, attorneys; James J. Langan, Jersey City, on the brief).

William T. McElroy, Newark, for defendants-respondents United Const. Co. and Francis L. Bayley (Shaw, Hughes & Pindar, Newark, attorneys; Robert Shaw, Newark, on the brief).

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

CLAPP, S.J.A.D.

This was an action for negligence which was dismissed at the close of plaintiff's case, on the ground that he had not made out a cause of action as against any of the three defendants. He appeals.

The defendant, Rosemawr Homes, Inc., was engaged in developing certain of its property. It hired or rented from the defendant, United Construction Co., Inc., a steam shovel to dig, among other things, a trench from a house to the street so as to enable Patsy Vellone, a plumbing contractor, to connect the house plumbing with the sewer line in the street. Plaintiff was Vellone's helper. The defendant, Francis L. Bayley, United's employee, the 'steam shovel man on the project,' dug the trench, in some measure at any event pursuant to Vellone's instructions, making it four feet wide and, for some of its distance, 12 feet deep. While plaintiff was at work in the trench, one side caved in, injuring him seriously.

We think the dismissal should stand as against Rosemawr. The plaintiff, citing Restatement of Torts, §§ 413 and 416, seeks to hold Rosemawr upon the theory that the ditch was inherently dangerous to the plaintiff unless special precautions were taken in digging it, and that therefore Rosemawr, as the employer of the independent contractor, United, is liable for United's alleged failure to take such precautions.

This theory has not met with approval everywhere. Silveus v. Grossman, 307 Pa. 272, 161 A. 362 (Sup.Ct.1932). Our cases use the term 'nuisance.' Terranella v. Union Bldg. & Construction Co., 3 N.J. 443, 446, 70 A.2d 753 (1950); Sarno v. Gulf Refining Co., 99 N.J.L. 340, 342, 124 A. 145 (Sup.Ct.1924), affirmed 102 N.J.L. 223, 130 A. 919 (E. & A.1925); Cuff v. Newark & New York R.R. Co., 35 N.J.L. 17 (Sup.Ct.1870), affirmed 35 N.J.L. 574 (E. & A. 1871).

But we need not in this case look further into the matter; for, as stated in the Restatement at the places cited, the rule applies only to a situation 'necessarily' giving rise to an 'unreasonable' or a 'peculiar' risk of bodily harm. See Prosser, Torts 488 (1941); Mechem, Outlines of Agency (4th ed. 1952), § 488; 57 C.J.S., Master and Servant, § 590, p. 361; Besner v. Central Trust Co., 230 N.Y. 357, 130 N.E. 577, 23 A.L.R. 1084; Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 868; Note, Responsibility for the Torts of an Independent Contractor, 39 Yale L.J. 861 (1930). As to the phrase 'inherent danger,' cf. Lydecker v. Freeholders of Passaic, 91 N.J.L. 622 627, 103 A. 251, L.R.A. 1918D, 351 (E. & A.1918); O'Donnell v. Asplundh Tree Expert Co., 13 N.J. 319, 329, 99 A.2d 577 et seq. (1953). It cannot be supposed from the proofs (even taking into account testimony that might have been given by Morris Mandl, as hereinafter stated) that the mere making of an excavation with a steam shovel would Necessarily give rise to an unreasonable or peculiar risk to the plaintiff.

Generally the person who engages an independent contractor is not to be charged with the negligence of the latter's employee. Meny v. Carlson,6 N.J. 82, 77 A.2d 245, 22 A.L.R.2d 1160 (1950). The case against Rosemawr is within the general rule and was properly dismissed.

As to the liability of the defendants, Bayley and United, the situation is different. First, United claims it was, as a matter of law, relieved of responsibility for Bayley's acts when it 'rented or hired' him and the shovel to Rosemawr. With this, we do not agree. United paid Bayley his wages. Besides it could reasonably be inferred that United expected him to look after its interests in operating the shovel and, failing that, could prohibit him from operating it. The question as to whether the relationship between United and Bayley was that of master and servant was for the jury. Larocca v. American Chain & Cable Co., 13 N.J. 1, 6, 97 A.2d 680 (1953); Younkers v. Ocean County, 130 N.J.L. 607, 33 A.2d 898 (E. & A.1943); cf. Mersey Docks and Harbour Board v. Coggins and Griffith (Liverpool), Ltd. (1947) A.C. 1 (H.L.).

Next, United, as an independent contractor, claims these injuries occurred after its work had been completed and accepted by the owner or employer, and therefore it and its employee are absolved from liability. Miller v. Davis & Averill, Inc., 137 N.J.L. 671, 61 A.2d 253 (E. & A. 1948); but cf. Restatement of Torts, § 385; Prosser, Torts, 694--697 (1941). See further Hale v. Depaoli, 33 Cal.2d 228, 201 P.2d 1, 13 A.L.R.2d 191, 239; and in support thereof, Prosser, supra, 695. The theory of this rule is "that, by occupying and resuming exclusive possession of the work, the owner deprives the contractor of all opportunity to rectify his wrong." Miller v. Davis & Averill, Inc., 137 N.J.L., at page 675, 61 A.2d at page 256, supra. The only proof of Rosemawr's acceptance of the work and resumption of exclusive possession over the property is a statement by Vellone, its independent contractor, that after the work was finished he (not Rosemawr) told Bayley it was satisfactory. That proof does not sustain the proposition.

Finally we came to the question whether or not the trial court erred in refusing to allow plaintiff to take the testimony of Morris Mandl, an expert witness. There was no proof of negligence without his testimony. Indeed, there was no offer of proof as to what his testimony would be. However, in the pretrial order plaintiff charges United and Bayley with negligence by reason of their failure to use 'standard methods' in excavating the trench, in that the sides thereof were straight, not V-shaped. The term 'standard methods'--at any event, reading it with the reference to experts in the answer to the interrogatory hereinafter mentioned--seems to us a sufficient indication that expert testimony was to be adduced on the point. Cf. Beck v. Monmouth Lumber Co., 137 N.J.L. 268, 277, 59 A.2d 400 (E. & A.1948).

Assuming, then, that there had been proof that Bayley deviated from standard methods so as to give rise to an unreasonable risk of causing harm, Kelly v. Loft, Inc., 124 N.J.L. 185, 11 A.2d 58 (E. & A.1940), we think plaintiff would have made out a case for the jury as against United and Bayley. United, through Bayley, undertook to operate a steam shovel here for hire, and it is for a jury to determine whether any such deviation constituted negligence. Prosser, supra, 239; 2 Wigmore, Evidence (3rd ed. 1940), 489. It does not become a question of law for the court merely because of the testimony that Bayley was working under Vellon's directions with no discretion as to the 'kind of hole' dug.

Mandl's testimony therefore was vital to plaintiff's case as against these two defendants. The court refused to allow it to be taken, R.R. 4:23--12, because his name did not appear in answer to the following interrogatory of those defendants 'State the name of every person known to plaintiff to have knowledge of any of the facts on which the allegations of the plaintiff are based * * *.'

After stating several names, plaintiff's answer added at the end:

'and several experts who have not as yet been retained.'

Thereafter and before the trial plaintiff retained another attorney, and the latter argued strongly at the trial and argues now that under the law he was not required by that interrogatory to furnish the names of experts. See Schnitzer & Wildstein, N.J.Rules Serv. A--IV--457. He...