Good v. Johnson

• Decision Date: 07 January 1907
• Parties: GOOD et al. v. JOHNSON.
• Court: Colorado Supreme Court

88 P. 439

38 Colo. 440

GOOD et al. v. JOHNSON.

Supreme Court of Colorado

January 7, 1907

Appeal from District Court, City and County of Denver; F. T Johnson, Judge.

Action by Gust Johnson against George S. Good and others, copartners as the George S. Good & Co. From a judgment for plaintiff defendants appeal. Reversed and remanded.

Skelton & Morrow, for appellants.

N. Q Tanquary and Chas. Roach, for appellee.

CAMPBELL J.

Action for damages for personal injuries. The Denver & Northwestern Pacific Railroad Company contracted with the Colorado & Utah Construction Company for the building of the former's roadbed. The construction company let a contract for grading a part of the road covered by its contract to George S. Good & Co., and the latter in turn sublet a portion of their work to Swanson, Johnson & Co. The plaintiff, Gust Johnson, was employed by Charles Swanson, a member of the firm of Swanson Johnson & Co., as a common laborer. Johnson, another member of the firm, who was acting at the time as its foreman, ordered plaintiff to do some work in a tunnel which was then being driven, in complying with which plaintiff was injured, as he says, through the foreman's negligence. Plaintiff seeks to hold Good & Co. responsible therefor: First, because Johnson was their servant and foreman,--the relation of Swanson, Johnson & Co. to Good & Co. being, as it is said, not that of independent contractors, but merely that of servants, in the sense that the master is responsible for their negligence; second, if the true relation between Good & Co. and Swanson, Johnson & Co. is not that of master and servant, nevertheless because of certain conduct of Good & Co. they are estopped now to deny that such was the relation. From the judgment which the plaintiff recovered against Good & Co., they have appealed.

The trial court committed grave and prejudicial error, necessitating a reversal, in its instructions to the jury with respect to the relation between defendants and Swanson, Johnson & Co. Therefore, questions argued by counsel relating to the negligence of defendants and contributory negligence of the plaintiff are eliminated from the discussion.

1. The contract, and the only contract, between Good & Co. and Swanson, Johnson & Co. is in writing. Therein the former are called contractors, the latter subcontractors, and for convenience they will be so designated in the opinion. There is not a particle of evidence which tends to show bad faith on the part of any of the parties to the contract in entering into it. The work done by the subcontractors was done under the written agreement and not otherwise. There is no evidence that the contractors assumed to exercise, or in fact exerted, any control whatever over the subcontractors other than, or different from, that which any owner or principal contractor retains over the one who does work under an agreement that leaves him entirely free as to the manner or mode in which that work shall be done, though requiring it to be done according to plans and specifications agreed on beforehand. The contract being in writing, the relation which it created between the parties thereto is exclusively within the province of the court to determine, and should not have been submitted to the jury. In instruction No. 5 the court told the jury if they believed that the contract between the parties was made in good faith, and that plaintiff was employed by Swanson, Johnson & Co. as subcontractors, then the defendants would not be liable. The court should not have submitted to the jury the question of good faith. That element was not involved in the case, for there was no evidence whatever tending to show bad faith. In this particular the court should have instructed the jury that the contract on its face, inasmuch as it was unquestionably executed by the parties in good faith, did not, considered in connection with the surrounding circumstances, constitute Swanson, Johnson & Co. servants of the contracts. The Colorado & Utah Construction Company was the original or first contractor to which was let all, or a large part, of the construction work for the railroad company. It is fair to assume that the entire work of grading and preparing the roadbed for rails was to be done in accordance with plans and specifications of the railroad company itself, to which those actually doing the work must conform. And it is only fair to say, what sufficiently appears from the record, that, in the written agreement between Good & Co. and Swanson, Johnson & Co., the various provisions which plaintiff here relies on as constituting the relation between them one of agency, or that of master and servant, are substantially the same which are found in the contract that defines the relation of the construction company and Good & Co., and were put in these various construction contracts to secure the general result which the railroad company sought to accomplish, viz., to have a satisfactory roadbed. In the light of these considerations, and from the language of these particular clauses, interpreted in the light of the entire contract including the plans and specifications which are a part thereof, let us proceed to an examination of these provisions of the contract which plaintiff says give rise to the relation of master and servant between the contractors and the subcontractors. The clauses are 3, 5, 9, 10, 15, 16 1/2, 21, and 26.

The third clause says that the work is to be performed under the direction and supervision of the engineer of the construction company, who is given power to condemn and reject any or all work or material which does not conform to the agreement, and defective work and material is to be remedied by the subcontractors at their cost and expense to the satisfaction of the engineer. The fifth clause authorizes this engineer to discharge any employé of the subcontractors whenever, in his opinion, the interests of the construction company or the contractors demand the same. The ninth clause authorizes the engineer, if he thinks the work is not progressing rapidly enough to secure its completion within the time limited by the contract, to notify the subcontractors to increase the force sufficiently to comply the therewith, and, if the subcontractors fail within a certain time to comply with this notice, such failure shall be considered as a breach and forfeiture of the agreement, and the contractors may declare the contract forfeited and enter upon and take possession of the work, and relet it, or perform the work themselves. The tenth clause is that the contractor may reduce the force engaged upon the work, or suspend it for any length of time, or may discontinue the work and cancel the contract by paying the subcontractor all that is coming to him up to the time of suspension. The fifteenth clause gives the engineer power to direct the application of forces to any portion of the work which in his judgment requires it. Clause 16 1/2 requires the contractor to furnish the subcontractors free of charge all tools and track and blacksmith outfit, and keep the same in repair. The twenty-first clause requires the subcontractor to save harmless the contractor from all damages that may be caused to third persons during the prosecution of the work. The twenty-sixth gives the option to the contractors in order to protect themselves against liens, to pay directly to the laborers or other persons employed by the subcontractors the wages which they have earned, and to charge such payments against the contractors as so much paid on the contract.

In our judgment, neither of these clauses, nor all combined, have the effect which the plaintiff contends for them, as a review of some of the leading authorities will disclose. Various rules have been enunciated for determining the question as to who are independent contractors. In Powell v. Virginia Construction Co., 88 Tenn. 692, 13 S.W. 691, 17 Am.St.Rep 925, Lurton, J., says: 'An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods, and without being subject to control of his employer, except as to the result of his work.' This definition has been quoted with approval by Mr. Justice Deemer in Humpton v. Unterkircher, 97 Iowa 509, 66 N.W. 776. The plaintiff in the case at hand at the time he received his injury was assisting in driving a tunnel in obedience to the order of his foreman, one of the subcontractors. There is not a clause in this contract which, by any fair construction, gives to the contractors the right to control the conduct of the subcontractors in the manner in which they might do this work. A number of cases on this subject are collated in section 622 and notes, 1 Thompson, Comm. on the Law of Negligence, and the general statement is there made that where the employer retains only such supervision and control and direction as will secure the proper result from the work, and not as to the means by which it is accomplished, the relation of master and servant does not exist. See, also, 1 Shearm. & Redf. on Law of Negligence (5th Ed.) § 164 et seq. In section 1063, 3 Elliott on Railroads, it is said, in speaking of a railway construction contract, that neither the reservation of power by the company to terminate the contract when, in the discretion of its engineer, the work is not progressing satisfactorily, the right to exercise general supervision and inspect the work as it progresses, nor the right to enforce forfeiture, will change the relation of an independent contract so as to render the company liable as for the negligence of its servant, and the fact that...