Hopper v. S. S. Ordway & Sons

• Decision Date: 22 November 1911
• Citation: 72 S.E. 839,157 N.C. 125
• Parties: HOPPER v. S. S. ORDWAY & SONS et al.
• Court: North Carolina Supreme Court

72 S.E. 839

157 N.C. 125

HOPPER v. S. S. ORDWAY & SONS et al.

Supreme Court of North Carolina

November 22, 1911

Appeal from Superior Court, Rockingham County; W. J. Adams, Judge.

Action by W. A. Hopper, personal representative of a decedent against S. S. Ordway & Sons and the Avalon Mills. Verdict for plaintiff only against Ordway & Sons, discharged bankrupts but without judgment, and plaintiff appeals. No error.

Neither a reservation by an owner of the right to supervise work done under a contract for the purpose merely of determining whether it conforms to the contract, where it involves merely his approval or disapproval of the results of the work, and not directions as to the mode of attaining such results, nor a provision in the contract that the work shall be done under the direction and to the satisfaction of a representative of the owner, nor that the contract provides that the owner shall, during the progress of the work, define and direct its scope, will make the contractor a servant of the owner, so as to render the owner liable for the contractor's negligence.

This is an action to recover damages for the death of the plaintiff's intestate, caused, as the plaintiff alleges by the negligence of the defendants. The plaintiff was aiding in building the foundation of the mill of the defendant Avalon Mills, at the time of his injury, and there is ample evidence of negligence. The defendant Avalon Mills denies negligence, and alleges that the work was being done by the defendants Ordway & Sons, as independent contractors, and the defendant's counsel say that the only question presented by the 11 assignments of error is whether or no S. S. Ordway & Sons are independent contractors.

There are three paper writings, which constitute the contract between the defendants. The first is entitled, "Specifications for Constructing the Masonry Abutment and Head Gates for the Avalon Mills at Mayodan, N. C.," and all specifications relate wholly to the material to be used, except the fourth, seventh, eighth, and ninth, which are as follows:

"(4) Mortar shall be composed of two parts clean sharp sand and one part of Rosendale cement of such brand as the engineer may approve, and mixed and used in such manner as he may direct."

"(7) Coping and arch masonry, should any be required, is not to be included in this work, but may be furnished by the company and set in place by the contractor at a fair price to be determined by the engineer.

"(8) The work shall be begun within ten (10) days from the time of award of the contract, and be finished and completed within four (4) months thereafter. Should the contractor not prosecute the work with such vigor as to indicate the completion of the work within the time specified, he must increase the force and equipment to such extent as the engineer may deem necessary to complete the work within the prescribed time, or suffer the penalty of a forfeiture of his contract and all the moneys that may be due him upon the work at such time as the right may be exercised by the company, party of the second part, viz., the Avalon Mills.

"(9) At the end of each thirty (30) days after the work is begun, the engineer shall measure up all the finished work, and make due and proper safe allowance for unfinished work, and render an estimate of the amount due the contractor for such work, which amounts shall be paid to him, less ten (10) per cent., which shall be held until the final completion of the work by the contractors."

The second is entitled, "Specifications for Constructing the Head Race or Canal for the Avalon Mills Company, at Mayodan N. C.," and contains detailed statements as to how the work shall be done, and, among others, the following provisions: "Should the contractor not prosecute the work with such vigor as to indicate the completion of the work within the time specified, he must increase the force and equipment to such an extent as the engineer may deem necessary to complete the work within the prescribed time, or suffer the penalty of a forfeiture of his contract and all his money that may be due him upon the work at such time as this right may be exercised by the company, party of the second part, viz., the Avalon Mills. *** The entire work shall be done in full accordance with the directions and instructions of the engineer or his assistant, and a failure on the part of the contractor to observe and well and truly carry out the work in accordance with the instructions of the engineer or his assistant, shall be deemed sufficient cause for the exercise of his forfeiture clause set forth in sec...