Harris v. Stone

• Decision Date: 11 December 1934
• Citation: 77 S.W.2d 18,256 Ky. 737
• Parties: HARRIS v. STONE et al.
• Court: Kentucky Court of Appeals

77 S.W.2d 18

256 Ky. 737

HARRIS v. STONE et al.

Court of Appeals of Kentucky

December 11, 1934

Appeal from Circuit Court, McCracken County.

Action by John C. Harris against N.E. Stone and others. From a judgment upon a directed verdict for named defendant plaintiff appeals.

Affirmed.

W. A Berry, of Paducah, for appellant.

Wheeler Wheeler & Shelbourne, of Paducah, for appellees.

RICHARDSON Justice.

In September 1932, N.E. Stone, under the firm name of N.E. Stone & Co., was awarded a contract by the state highway commission for the construction, according to the plans and specifications of the commission, of the Paducah-Wickliffe road beginning at the west corporate limit of Paducah, and extending to its intersection with United States 60, near Maxon, a distance of approximately 6,935 miles. In October 1932, he sublet by a written contract to C. E. and J. S. Cressup, engaged in business as Cressup Bros., the building of bridges and culverts on this road, to be constructed by them according to the plans and specifications of the commission and under the supervision of its engineer.

The residence of John C. Harris was located about 200 feet of a culvert required to be constructed under Stone's contract with the commission and under his contract with Cressup Bros. In December, 1932, in the removal of an old culvert on the highway, Harris charges, "they put in a very large and unnecessary charge of dynamite in the culvert and exploded it," which produced damage to his residence by the "cracking the walls, loosening the doors and windows and doing other damage to the extent and amount of $2000.00"; "that with the use of a reasonable amount of dynamite the culvert could have been removed without any damage resulting in the explosion, and damage to the residence, and but for the use of an excessive amount of dynamite the resulting damage to plaintiff's residence would not have occurred."

On issues formed, after the introduction of Harris' evidence, the court directed a verdict for Stone, but submitted the issues as to Cressup Bros., which resulted in a verdict of $1,200 against them.

The sole question presented on this appeal is the propriety of the directed verdict for Stone. In his brief, Harris claims there are two reasons why the court erred in the giving of this instruction: "First, because the record in this case does not justify the conclusion that these men were what in law would be termed independent contractors. Second, it is the contention of the appellants that a general contractor cannot let to his sub-contractor a character of work to be done inherently dangerous in its nature."

It is conceded the evidence established that Stone had no control or authority over Cressup Bros. in the conduct of the work further than to see that it was done according to the plans and specifications which were furnished by the state highway commission. He did not personally interfere with, undertake to do, manage, or control, the work of Cressup Bros., and they rendered the services in accordance with the contract with their own labor and means, and Stone was only concerned in the result of their work. Such facts established the relation of independent contractors between Cressup Bros. and Stone. Ballard & Ballard Co. v. Lee's Adm'r, 131 Ky. 412, 115 S.W. 732; Pine Mt. R. Co. v. Finley (Ky.) 117 S.W. 413; Jahns' Adm'r v. Wm. H. McKnight & Co., 117 Ky. 655, 78 S.W. 862, 25 Ky. Law Rep. 1758; Louisville & N. R. Co. v. Smith's Adm'r, 134 Ky. 47, 119 S.W. 241; Illinois Cent. R. Co. v. Murphy's Adm'r, 123 Ky. 787, 97 S.W. 729, 11 L. R. A. (N. S.) 352; American Savings Life Ins. Co. v. Riplinger, 249 Ky. 8, 60 S.W.2d 115, 118.

The contract of Stone and Cressup Bros. contains a clause requiring Stone to carry workmen's compensation insurance, covering the risk of Cressup Bros. to their employees in the performance of the contract; also a public liability policy, insuring and indemnifying them against loss because of any public liability claims on account of the doing of the work contemplated by the contract; the premiums to be charged to Cressup Bros.

Harris argues this clause of the contract renders Stone liable for the damage to his property, notwithstanding Cressup Bros. were otherwise independent contractors within the meaning of this term. Other than his mere assertion to this effect, he states no reason, and cites to us no authority, to sustain his contention. We can conceive of no reason and know of no authority authorizing us to concur in his insistence.

In the Riplinger Case, we adopted this definition of an "independent contractor": ...