Massey v. Oates

• Decision Date: 14 February 1905
• Citation: 143 Ala. 248,39 So. 142
• Parties: MASSEY ET AL. v. OATES.
• Court: Alabama Supreme Court

39 So. 142

143 Ala. 248

MASSEY ET AL. v. OATES.

Supreme Court of Alabama

February 14, 1905

On Rehearing, June 30, 1905.

Appeal from City Court of Birmingham; Charles A. Senn, Judge.

Action by W. R. Oates against J. A. Massey and Mrs. L. L. Molton. From a judgment for plaintiff, defendants appeal. Reversed.

Peyton H. Moore and Walker, Tillman, Campbell & Morrow, for appellants.

George Huddleston, for appellee.

McCLELLAN C.J.

Molton the owner of a business house abutting on a public street in Birmingham, made a contract with Massey, a man of experience and competency in the work, to lay a cement or concrete pavement on the sidewalk in front of this house. Massey was to furnish the material and labor, and his compensation was to be $1 per yard of the pavement. It was understood that the work was to be promptly done and in such way as to involve the least inconvenience to the public and to Molton's tenants in said house. Molton reserved no control over Massey in respect of the work, nor did he assume to direct him in any way during its progress. A part of the work thus undertaken by Massey was the protection of the concrete pavement, after being laid, while it was drying and hardening. There were two ways of doing this. One method was to close in the space so that nobody could get on the pavement; and the other was to superimpose a temporary pavement or walkway of planking, so that the sidewalk could be used by the public and Molton's tenants while the concrete was hardening. In view of the understanding between Molton and Massey that the convenience of the public and of the occupants of the house should be conserved as far as possible in the manner of doing the work, it may be said to have been in their contemplation that the latter of these methods should be pursued; that is, that a board walkway should be constructed over the concrete so that the sidewalk could be used during the several days--from four to seven--that would be required for the pavement to harden. So that it may be said that Molton contracted with Massey primarily to lay a concrete pavement, and secondarily, or incidentally, to construct a temporary board sidewalk in front of said house. The municipal authorities issued to Molton or to Massey on behalf of Molton a license for this proposed betterment of the sidewalk, which of course imported authority to construct the incidental temporary board walk and by the terms of the contract between Molton and Massey the work was to be done according to specifications of the city's engineer. Massey proceeded with the work, laid the concrete pavement, and, to protect it while hardening, contructed over it at a height of some six or seven inches a plank walk or floor to be used meantime as the sidewalk in front of the building. According to plaintiff's evidence, this plank walk was defectively constructed, and in consequence the plaintiff, while attempting to use it as the sidewalk in passing along the street, lost his footing and fell receiving the injuries he now complains of. His action is against both Molton and Massey. He recovered against both, and the sole question reserved on the trial for our consideration is whether Molton is liable.

It is we understand, conceded in the case, and certainly the proposition cannot be even plausibly gainsaid, that on the uncontroverted facts above stated Massey was an independent contractor in the premises, and not the agent, servant, or mere employé of Molton. Nor is there any controversy as to the general rule of nonliability of a party who thus contracts with another to do certain work for negligence of that other in doing the work whereby a third person suffers. It is recognized as a general proposition the doctrine respondeat superior has no application under such circumstances. But it is insisted, and was held by the city court, that this doctrine does not obtain in this case; but, to the contrary, that an exception to the general rule, to the effect that, where injury results from the very thing contracted to be done, both the party having that thing done and the independent contractor doing it are responsible applies here, and fixes liability on Molton, as, apart from this principle, it is fixed upon Massey. That there is such an exception to the general doctrine of nonliability in such cases is not to be questioned. It is, indeed, as well established as the rule itself. Both the general rule and this exception to it are as well stated and as aptly illustrated by Mr. Justice Sommerville in Birmingham v. McCary, 84 Ala. 469, 4 So. 630, as anywhere in the books. The chiefest difficulty which courts have encountered lies in the application of the law to particular cases, for, while there is substantial agreement in the formulation of both the rule and the exception, the...