Hoff v. Shockley

• Decision Date: 11 February 1904
• Citation: 98 N.W. 573,122 Iowa 720
• Parties: A. W. HOFF v. ADELAIDE S. SHOCKLEY, Appellant
• Court: Iowa Supreme Court

98 N.W. 573

122 Iowa 720

A. W. HOFF v. ADELAIDE S. SHOCKLEY, Appellant

Supreme Court of Iowa, Des Moines

February 11, 1904

Appeal from Polk District Court.--HON. CHARLES A. BISHOP, Judge.

ACTION to recover damages on account of personal injuries to plaintiff's wife, resulting from being thrown from a buggy on account of a pile of sand in the street in front of the premises of the defendant, Mrs. Shockley. Verdict and judgment for plaintiff. Defendant appeals.

Reversed.

James A. Merritt and J. K. Macomber for appellant.

Carr Hewitt, Parker & Wright for appellee.

MCCLAIN J. BISHOP, J., takes no part.

OPINION

MCCLAIN, J.

The defendant, Mrs. Shockley, procured a building permit from the proper city authorities for the erection of a dwelling house on her lot abutting upon a paved street, and then made a written contract with one Wynburn to construct such house the contractor to furnish all the labor and material, except brick, which was to be furnished by defendant. In the course of the work, Wynburn caused sand to be hauled and piled up in the street in front of defendant's lot; the place for depositing it being selected with the approval of defendant's husband. This pile of sand being left unguarded and unmarked by danger signals of any kind, the plaintiff, driving along the street at night in a buggy with his wife, drove upon it, and the buggy was overturned, and plaintiff's wife was thrown out and injured. Wynburn and two others were made codefendants with Mrs. Shockley, but the action was dismissed or abated with reference to the two other defendants, and verdict and judgment for $ 4,700 were returned and entered against Mrs. Shockley and Wynburn. As Wynburn does not appeal, the case will be treated as one against Mrs. Shockley alone.

The sole question necessary to consider is whether, under the facts, as to which there is practically no dispute, defendant is liable for what may be conceded to have been the negligence of Wynburn in allowing the pile of sand to remain in the street unguarded, and in such condition that plaintiff, in the exercise of reasonable care, drove his buggy upon and over it, and the injury complained of resulted proximately therefrom. It is clearly established by the evidence that Wynburn was an independent contractor, and it is unnecessary to cite authorities to the general proposition that one who employs another to do a piece of work according to the methods to be adopted by the latter, and without reservation of control on the part of the employer, except as to the result of the work done, is not liable for injuries suffered by a third person by reason of the negligence of the contractor in carrying on the work. There are qualifications of the rule thus broadly stated, which need not be here discussed. This case does not fall within any such qualifications or exceptions, unless it be some exception or qualification predicated upon the fact that defendant was the owner of the premises on which the improvement was being made, and allowed a dangerous obstruction, created through the contractor's negligence, to exist in the street in front of such premises.

Such a state of facts was held in Bush v. Steinman, 1 Bos. & P. 404, to render the owner of the premises liable, and if the doctrine there announced has been adhered to in subsequent decisions, and remains a correct exposition of the law, then the judgment against the defendant is well founded. As the case cited is typical, it will facilitate the discussion to quote the statement of facts from the report: "The defendant, having purchased a house by the roadside (but which he had never occupied), contracted with a surveyor to put it in repair for a stipulated sum; a carpenter, having the contract under the surveyor to do the whole business, employed a bricklayer under him; and he, again, contracted for a quantity of lime with a lime burner, by whose servant the lime in question was laid in the road." Under this state of facts, the Lord Chief Justice of the English Court of Common Pleas, before whom the case was tried, was of opinion that the defendant was not answerable for the injury sustained by the plaintiff by reason of the lime being piled in the highway. But to get the case before the full bench, a verdict was taken for the plaintiff, with leave to defendant to move for a non-suit. After full consideration, the court agreed that the action could be maintained, although the chief justice still entertained doubts as to the precise principle on which the verdict should be sustained. The rule adopted by the court is most clearly stated by Rooke, J., who says: "He who has work going on for his benefit and on his own premises must be civilly answerable for the acts of those whom he employs. According to the principle of the case in 2 Lev. (Michal v. Alestree), it shall be intended by the court that he has a control over all those persons who work on his premises, and he shall not be allowed to discharge himself from that intendment of law by any act or contract of his own. He ought to reserve such control, and, if he deprive himself of it, the law will not permit him to take advantage of that circumstance in order to screen himself from an action. * * * The person from whom the whole authority is originally derived is the person who ought to be answerable, and great inconvenience would follow if it were otherwise." It will be noticed that the learned judge rendering the opinion substantially ignores the distinction between the case of master and servant and one of independent contractor. But in view of the full recognition which the doctrine of independent contractor has received in the modern cases, the conclusion of the court in Bush v. Steinman is to be supported, if at all, as establishing an exception to the effect that the owner of fixed property owes a duty to make the premises safe, regardless of whether the unsafe condition complained of results from the negligence of himself or his servants, or from the negligence of an independent contractor and his servants. But, as applied to a case of a dangerous nuisance in the highway in front of the owner's premises, not caused by the act of the owner, nor of persons for whose acts he is responsible as master or employer, this doctrine has not been accepted by the authorities. The courts of England have expressly refused to follow the case of Bush v. Steinman, and it has been distinctly and unanimously disclaimed as authority in this country. Hilliard v. Richardson, 69 Mass. 349, 3 Gray 349 (63 Am. Dec. 743); Boswell v. Laird, 8 Cal. 469, 494 (68 Am. Dec. 345); King v. New York Cent. & H. R. Co., 66 N.Y. 181 (23 Am. Rep. 37). As is said in Hilliard v. Richardson, just cited: "Bush v. Steinman is no longer law in England. If ever a case can be said to have been overruled, indirectly and directly, by reasoning and by authority, this has been. No one can have examined the case without feeling the difficulty of the clear-headed judge, Chief Justice Eyre, of knowing on what ground its decision was put. It could not stand on the relation of master and servant. That relation did not exist. It could not stand upon the ground of defendant having created or suffered a nuisance upon his own land, to the injury of his neighbor's property. The lime was on the highway. There is no rule to include it but the indefinitely broad and loose one that a person shall be answerable for any injury which arises in carrying into execution that which he has employed another to do--a rule which ought to have been, and was, expressly repudiated."

The contention of counsel for the appellee seems to be this Defendant should have known that the carrying on of the work by the contractor would involve the deposit of sand in the street, and, while this would not necessarily and of itself constitute a nuisance, it might become a nuisance by reason of failure to properly guard it or warn against it, and the defendant should have taken pains to see that the contractor took proper precautions. But such an argument, if acceded to, would require conclusions which are wholly untenable. The defendant must have known that it would be necessary for the contractor to drive his wagons along the street in front of defendant's premises, and thereby, to some extent, obstruct the use of the street while they were being unloaded. And yet could it be claimed that the negligence of the contractor in so driving his wagons or managing them as to injure persons using the street would render the defendant liable? The street was a public highway, and the contractor used the street in carrying out his contract subject to the same limitations as those imposed upon others in the use of a public highway. But it was not the concern of the defendant how the contractor used...