Kampmann v. Rothwell

• Decision Date: 15 January 1908
• Citation: 107 S.W. 120
• Parties: KAMPMANN v. ROTHWELL et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

107 S.W. 120

KAMPMANN v. ROTHWELL et al.^*

Court of Civil Appeals of Texas.

January 15, 1908.

Rehearing Denied February 5, 1908.

Appeal from District Court, Bexar County; Edward Dwyer, Judge.

Personal injury action by I. N. Rothwell against Elizabeth S. Kampmann, with cross-action by defendant against Fitzgerald & Basille. From a judgment for plaintiff and the firm, defendant appeals. Affirmed.

Denman, Franklin & McGown, for appellant. Nat. B. Jones, Houston Bros., and R. J. Boyle, for appellees.

FLY, J.

This is a suit instituted by I. N. Rothwell against appellant for damages alleged to have accrued by reason of plaintiff, who will be spoken of as appellee hereinafter, falling, at night, over planks placed across the sidewalk, and not guarded by lights or otherwise. Appellant answered that she owned the property at the southeast corner of Fourth street and Avenue E, in San Antonio, and that, desiring to have the sidewalk on the Avenue E side of her property repaired, she employed Fitzgerald & Basille, as independent contractors, to make the repairs, the work to be done in their own way, and without any interference on her part. She filed a cross-action, in which she asked that the contractors be made parties, and for judgment over against them in the event any judgment was rendered against her. The cause was tried by jury, and resulted in a verdict and judgment against appellant for $2,000, and in favor of the contractors.

The first assignment of error is that "the court erred in overruling appellant's demurrer to the petition." There is no reference in the statement to any demurrer that was presented to the petition, and it is only by a reference to the amended answer that it is ascertained that only a general demurrer was presented. The statement is not such a one as is contemplated by the rules. Haley v. Davidson, 48 Tex. 615. But, laying that matter aside, those portions alone of the petition are attacked which allege a nuisance; but there is another count in the petition which alleges that appellant "unlawfully and negligently failed to protect the obstruction while existing on said sidewalk, and on the occasion of plaintiff's injury, as hereinafter stated, it was not protected by railings, lights, or in any other manner, and said walk was not in as good condition as before said repairs were made, and was unsafe for travel, as hereinbefore charged, and defendant negligently and unlawfully failed to promptly repair the said walk so as to have said sidewalk in as good condition as before said obstruction and repairs were placed thereon, but left it in an unsafe and dangerous condition as before charged, and especially so by reason of the said obstruction being unprotected, as required by said ordinance." The general demurrer went to the pleading as a whole; and, if any part of it presented a cause of action, it was properly overruled. Oliphant v. Markham, 79 Tex. 543, 15 S. W. 569, 23 Am. St. Rep. 363; Staples v. Llano County, 9 Tex. Civ. App. 201, 28 S. W. 569. The issue as to the obstruction being in violation of the city ordinances was not submitted to the jury, but the question of negligence alone, as alleged in the count above copied, was presented. The petition was sufficient to form a basis for damages as against a general demurrer. We are of opinion, however, that the language used in the ordinance pleaded, "whenever hereafter any sidewalk shall be constructed, built or repaired within the corporate limits of the city of San Antonio, by any person or persons whomsoever, the same shall be done under the superintendence, direction, management and control of the city engineer of the city of San Antonio, and not otherwise," does not apply to the persons alone, who perform the manual labor, but to the owner of the premises, or other person, who procures the construction, building, or repairing of any sidewalk.

The second assignment of error assails the action of the court in refusing to instruct a verdict for appellant. Under that assignment it is asserted that "there was no legal obligation resting upon appellant to keep her sidewalk clear of obstruction," and that, if she was liable at all, it would be because she had placed the obstruction on the sidewalk, or caused it to be done. It is contended that the evidence "shows beyond controversy that appellant neither placed, nor caused to be placed, the alleged obstruction upon the sidewalk." The only evidence offered, as to the contract between appellant and Fitzgerald & Basille was the testimony of the last-named parties, and there is nothing in their testimony that indicates what the terms of the original contract were or those of the contract to repair. They swore that they were contractors; that appellant telephoned to them to come up and see her; that they went to her house; that she came out on the sidewalk, and showed them two broken places in it, and what was needed, and wanted them to fix it, and they did the work, a necessary part of which was putting planks over it to protect it until it had become hard. They also stated that they had the contract to build the sidewalk originally, but that the repairs were not done under that contract, although appellant claimed that they must be so done, and that she would not and did not pay for it. Fitzgerald stated that there was no contract to perform, but simply that she pointed out what she wanted done and they did it. Fitzgerald swore that the defects in sidewalk were caused by water turned thereon by appellant. The contractors employed their own men. That is in substance the whole of the evidence on the question of the contract.

If Fitzgerald & Basille were acting under the direction and contract of appellant in repairing the sidewalk, they were not independent contractors. An independent contractor is one employed to perform certain work, the details of which are completely within his control and discretion; but if the details of the contract are to be completed under the control of the persons employing him, and according to their direction, then the person doing the work is not an independent contractor, but an agent, servant, or employé. Cunningham v. Railroad, 51 Tex. 509, 32 Am. Rep. 632; Burton v. Railway, 61 Tex. 526; Wallace v. Cotton Oil Co., 91 Tex. 18, 40 S. W. 399. That Fitzgerald & Basille were independent contractors was defensive matter interposed by appellant, and the burden rested on her to show that they were not her agents, servants, or employés, but were acting independently of her authority or control. The presumption would arise, from the contractors being engaged in her work, that they were her employés, "and if the facts be such as to exempt the owner of the property improved, or the person for whom the work is being performed, from liability for the acts of those performing such work, it devolves upon him who claims such exemption to make proof of the terms of the contract, showing that the relation of master and servant did not exist." Railway v. Warner, 88 Tex. 642, 32 S. W. 868. Appellant failed to show the terms of the contract, and the presumption of the relationship of master and servant consequently was not removed. We do not know what powers and rights she reserved and exercised over the persons performing the work. Dublin v. Railway, 92 Tex. 535, 50 S. W. 120. If Fitzgerald & Basille were acting as the agents, servants, or employés of appellant, their agency carried with it every power necessary to put into execution the desired work. In other words, she would be liable for everything done in the furtherance of the work. If they were acting in her interest, as undoubtedly they were, in placing the planks on the sidewalk to protect it from injury, then in contemplation of law they acted within the scope of their authority and in furtherance of her business. Railway v. Cooper, 88 Tex. 607, 32 S. W. 517; Burnett v. Oechsner, 92 Tex. 588, 50 S. W. 562, 71 Am. St. Rep. 880. But, proceeding upon the theory that the work was done by independent contractors, the question arises whether appellant, under the facts and circumstances of this case, is or is not liable for the negligence of such contractors in not warning those passing along the sidewalk of the obstruction placed thereon to protect the sidewalk until the material of which it was composed had hardened. It is the general rule that one who has contracted with a competent and fit person, exercising an independent employment, to do a certain piece of work, not in itself unlawful or attended with danger to others, according to the contractor's methods, and without his being subject to the control of the employer, except as to the results of the work, will not be answerable for the wrongs of such contractor, his subcontractors, or his servants, committed in the prosecution of such work. Thompson, Neg. vol. 2, § 22.

There is, however, another well-established rule that, where a person is under a duty to the public or a third person to see that work he is about to do or have done is carefully performed, so as to avoid injury to others, he cannot, by employing a contractor, avoid liability in case it is negligently done to the injury of another. The last rule is not in conflict with the one stated immediately preceding it, but grows out of the qualification as to the work not in itself being attended with danger to others. As clearly and succinctly stated in Robbins v. Chicago, 71 U. S. 657, 18 L. Ed. 427: "Where the obstruction or defect caused or created in the street is purely collateral to the work contracted to be done, and is entirely the result of the wrongful acts of the contractor or his workmen, the rule is that the employer is not liable; but, where the obstruction or defect which occasioned the injury results directly from the acts which the contractor agrees and is authorized to do, the person who employs the contractor and authorizes him to do those acts is equally liable to the injured party....