Marion Shoe Co. v. Eppley

• Decision Date: 20 February 1914
• Docket Number: 22,507
• Citation: 104 N.E. 65,181 Ind. 219
• Parties: Marion Shoe Company v. Eppley
• Court: Indiana Supreme Court

104 N.E. 65

181 Ind. 219

Marion Shoe Company v. Eppley

No. 22,507

Supreme Court of Indiana

February 20, 1914

From Huntington Circuit Court; Samuel E. Cook, Judge.

Action by Cyrus H. Eppley against the Marion Shoe Company.From a judgment for plaintiff, the defendant appeals.(Transferred from the Appellate Court under § 1405 Burns 1908, Acts 1901p. 590.)

Reversed.

Condo & Browne, for appellant.

Murphy & Todd, William M. Amsden and Bowers & Feightner, for appellee.

OPINION

Spencer, J.

Action by appellee to recover damages for personal injuries alleged to have been sustained while he was in the employ of appellant as a bricklayer, and by reason of appellant's negligence.There was a trial by jury, a verdict for appellee in the sum of $ 5,000 and a judgment thereon, from which this appeal is prosecuted.

The evidence shows that, sometime prior to March 23, 1910appellant, through its president, Mr. Butterworth, entered into a verbal agreement with the firm of L. L. Johnson & Son relative to the construction of a certain factory building on its property; that L. L. Johnson & Son were general contractors engaged in the construction of brick buildings that under the terms of said agreement L. L. Johnson & Son were to erect all brick walls and cement or concrete foundations in said building according to plans and specifications drawn by appellant's architect; that appellant was to furnish all the brick and other building material while L. L. Johnson & Son were to supply all scaffolding, shovels, wheelbarrows, hods, etc., used by the workmen in the construction of the building; that L. L Johnson & Son were to employ their own men; that for their services in the supervision, construction and general erection of the brick and cement work, L. L. Johnson & Son were to receive a stated sum per week with additional compensation for the use of their machine for mixing concrete, whenever it should be operated.It further appears that, during the progress of the work, L. L. Johnson & Son did hire all the bricklayers, including appellee, and all the laborers employed on the building, and gave the orders to the men as to what they should do and how it should be done; that Bernard Johnson, the junior member of the firm, kept the time of the men and made out a weekly pay roll which he presented to Mr. Butterworth and received from him the money needed to meet the same.The latter was about the building practically every day during its construction and conferred with L. L. Johnson & Son from time to time regarding the plans and specifications but, in only two instances, does the evidence suggest that he exercised any control over appellee or his fellow workmen.Appellee's witness, Edwards, testified on direct examination that on one occasion, Mr. Butterworth told him that certain window-frames were set wrong, that he said "they should be changed," and they were changed.On cross-examination, however, the witness admitted that Mr. Butterworth did not tell him to make the change and that it was not made until Mr. Johnson so directed.Another witness, who had been employed on the work as a hod carrier, testified that he was laid off by Mr. Butterworth.This occurred at a time when the work was nearly completed and Mr. Butterworth testified that he was acting under the direction of the Johnsons who had then taken on another contract and were away from appellant's buildings much of the time.There is no other suggestion in the record that the workmen were under the control and direction of appellant.Appellee was injured by reason of the fall of a defective scaffold on which he was at work.This scaffold was the property of L. L. Johnson & Son, had been used by them on other buildings, and was placed in position on this building by their employes.With these as the facts, appellant contends that L. L. Johnson & Son were independent contractors for whose negligence it is not responsible.Appellee takes the position that they were building superintendents for appellant.

It is well settled that "where one person lets a contract to another to do a particular work, reserving to himself no control over the manner in which the work shall be performed except that it shall conform to a particular standard when completed, he is not liable for any injury which may occur to others by reason of any negligence of the person to whom the contract is let."Vincennes Water Supply Co. v. White(1890), 124 Ind. 376, 379, 24 N.E. 747, and cases cited.To the same effect is the case of New Albany, etc., Mill v. Cooper(1891), 131 Ind. 363, 30 N.E. 294. ...