Jacob v. Mosler Safe Co., Inc.

• Decision Date: 25 July 1940
• Citation: 127 Conn. 186,14 A.2d 736
• Court: Connecticut Supreme Court
• Parties: JACOB et al. v. MOSLER SAFE CO., Inc.

14 A.2d 736

127 Conn. 186

JACOB et al. v. MOSLER SAFE CO., Inc.

Supreme Court of Errors of Connecticut.

July 25, 1940

Appeal from Court of Common Pleas, Fairfield County; Richard S Swain, Judge.

Action by Mary Jacob and others against the Mosler Safe Company Incorporated, for damages to plaintiffs' property alleged to have been caused by negligence of the defendant. From judgment for plaintiffs, the defendant appeals.

Error and judgment directed for defendant.

One who employs an independent contractor to do work, in careful performance of which injuries will naturally and probably result unless precautions are taken, is under a duty to see that such precautions are taken.

Milton L. Cohn and Israel J. Cohn, both of Bridgeport, for appellant.

Philip Reich and Samuel Reich, both of Bridgeport, for appellees.

Argued before MALTBIE, C.J., and AVERY, BROWN, JENNINGS, and ELLS JJ.

ELLS, Judge.

One who employs an independent contractor to do a certain work is not liable, as a general rule, for injuries resulting from its performance, but he does render himself liable when the work required of the contractor will, in its ordinary and reasonable execution, necessarily expose others to probable injuries. This exception is not based on the theory of negligent performance by the independent contractor, but upon the principle that the employer or owner has caused something to be done which he knows, or ought to know will cause, or will probably cause, the injury which ensues. Alexander v. Sherman's Sons Co., 86 Conn. 292, 85 A. 514. The question at issue in this case is whether the facts bring it within this exception to the general rule.

The facts are undisputed. The defendant purchased a vault door and frame located in the basement of a building formerly occupied as a bank, and contracted with Adams, Waldo and Conger, Inc., to remove them. That firm hired a company known as The Expert Concrete Breakers to do some of the work, but exercised complete supervision of all the work. Due care was used in selecting the independent contractor and the defendant relied on the latter's experience and ability to carefully and skillfully perform the work. The defendant exercised no control or supervision as to the method or manner of performing the work. The plaintiffs occupied, as a tenant of the owner of the building, a store on the street floor and a room in the basement which was one of several former coupon rooms. They operated a dress shop, and had stored a surplus stock in the basement room. Neither the defendant nor the contractor had notice prior to the doing of the work that dresses or other property that might be damaged by dust were in any of the former coupon rooms in the basement, nor did they know that this room was occupied by tenants of the building. One of the owners of the building was present at all times during the performance of the work. It does not appear that he knew the room was thus occupied and used. In any event, he did not notify the defendant or the contractor of such occupancy. The door to this room was locked, and kept locked by the plaintiffs. The several former coupon rooms, including this one, opened into a common areaway upon which the bank vault door also opened. Access to the plaintiffs' room was by a door, at the bottom of which there was a ventilator consisting of an opening covered by a wire screen.

The plaintiffs claim the nub of the case is the court's finding that in order to remove the vault door and frame it was necessary to cut the walls by means of compressed air drills, which necessarily involved the production and diffusion of a great amount of gritty dirt and that the defendant knew there was no other way of doing this work. At about 8 o'clock on the morning of March 22, 1938, the work was begun, and almost immediately considerable dust found its way through the ventilator, and ruined the dresses. This could have been easily prevented by sealing up the ventilator, or by enclosing the place of the cutting of the concrete. It is not found that any damage was done to the stock of dresses on the floor above. No inquiry was made by the defendant or its subcontractor, The Expert Concrete Breakers to determine whether there was any property in any of the coupon rooms which might be damaged by the dust.

The trial court concluded that the independent contractor was negligent in failing to take adequate means to confine the dust, that the defendant owed a duty to see that proper precautions were taken, that the defendant was guilty of actionable negligence, and that it is liable for the negligence of its independent contractor.

We have already stated that the contractee is not made liable because of the negligent performance of the work by the independent contractor. The test is whether he caused something to be done which, when properly done he knows or ought to know will cause or probably cause, the injury complained of. He is not liable for injuries caused by the contractor's negligence in performing the work contracted for where its reasonable performance will not necessarily or obviously expose others to probable injury. Where it will expose others to such injuries, he may be held liable although the injuries are caused in the proper performance of the work. Alexander v. Sherman's Sons Co., supra.

The trial court having found that the independent contractor was negligent it follows that he did not properly perform the work. This work, in its natural and reasonable execution, did not call for the use of such means as would obviously have exposed the plaintiffs to probable injury. It was only because of the failure of the company to take precautions against injury that it resulted. In the Alexander case, supra [86 Conn. 292, 85 A. 516], we approved a charge that ‘ if the independent contractor did not use such care as the defendant had the right to expect, and by reason of the lack of such care and not in the due and natural performance of the contract the injury occurred, the defendant is not responsible.’

There was nothing inherently or intrinsically dangerous about the work to be performed, in this case. Danger attended only its negligent performance. Negligence comprehends acts of omission as well as of commission. The negligence of the independent contractor was in its omission of proper precautions.

In Lawrence v. Shipman, reported in the supplement to 39 Conn. 586, 589, Judge Seymour's famous opinion formulated four rules of law, two of which lead the way to a correct decision of the present problem. ‘ 1. If a contractor faithfully performs his contract, and a third person is injured by the contractor, in the course of its due performance, or by its result, the employer is liable, for he causes the precise act to be done which occasions the injury; but for negligences of the contractor, not done under the contract...