Mills v. Krauss
| Decision Date | 23 September 1959 |
| Docket Number | No. 999,999 |
| Citation | 114 So.2d 817 |
| Parties | W. H. MILLS, Albert H. Jones, and James M. Guelker, doing business as Mills & Jones, Appellants, v. Otto KRAUSS, doing business as Krauss, and Krauss Roofing Company, Inc., a corporation, Appellees. |
| Court | Florida District Court of Appeals |
Grazier, Greene & Coit, St. Petersburg, and Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellants.
Edmund T. Shubrick and Mann, Harrison & Mann, St. Petersburg, for appellees.
The trial court on appellees' motion for a summary judgment ruled as a matter of law that where a general contractor subcontracts a portion of construction work to an independent contractor, the general contractor is not liable to the owner of the premises for damages caused thereto by the negligence of the subcontractor in failing to perform the work properly. This holding cannot be sustained and the judgment is reversed.
Succinctly, the pleadings reveal that Barnes Operating Company, Inc. was the owner of the Huntingtoh Hotel and engaged the appellants to do certain remodeling, renovating and major repair work upon the Huntington Hotel, the appellants guaranteeing that all of the materials, work and labor would be of first-class quality and that the job would be performed with care and skill so as to protect the owner's property from damage or injury in the performance of the work. The appellants subcontracted the roofing portion of the remodeling of said hotel to the appellees. It is stipulated that the appellees were independent contractors. While appellees were engaged in the performance of this contract, through their negligence rain entered into the hotel through the roof and caused damage in a substantial amount to the interior of said hotel.
When the appellants sought to collect the balance due them under the general contract price from Barnes Operating Company, Inc., they were met by a demand and counterclaim for reimbursement of the water damage resulting from appellees' negligence. The appellants thereupon made demand upon appellees to reimburse Barnes for the alleged damages. Appellees ignored this demand; and the appellants, being convinced of their liability, negotiated a settlement with Barnes.
In the meanwhile appellees, the independent contractors, filed suit against the appellants for the balance they claimed to be due under their subcontract. The appellants counterclaimed for indemnification of the amount they had paid to Barnes Operating Company, Inc. for damages caused solely by appellees' negligence in the performance of their subcontract. Appellees moved for summary judgment on this counterclaim, contending that as a matter of law appellants were not entitled to indemnification.
The learned trial judge agreed, holding as a matter of law that the appellants were not liable to Barnes Operating Company, Inc. for the negligent acts of appellees as independent contractors, that the payments made by appellants were voluntary and not made under any legal obligation, and that the appellants were not entitled to indemnification. Summary final judgment was thereupon granted to appellees against appellants' counterclaim. Upon doing so, the trial judge followed the general principles governing the nonliability of a principal for the tortious acts of an independent contractor and failed to recognize the inapplicability of this rule as the pleadings and facts in this case required.
The appellees in their brief have cited a number of cases which recognize and deal with the general rule of non-liability of an employer for the negligence of an independent subcontractor. The appellants strongly urge upon us that the contractual relations existing between the appellants and the owner of the premises create an exception to the above general rule, and with this we agree.
In some circumstances duties may devolve upon an employer which he cannot delegate to another, and in such cases the employer is liable for breach or nonperformance of such duties even though he employs an independent contractor to do the work. Dealing with nonperformance of absolute duties of an employer and with reference to contractual obligations, the following is said in 27 Am.Jur., Independent Contractors, section 48, at page 526:
'Likewise, one who, by a specific agreement, undertakes to do some particular thing, or to do it in a certain manner, cannot by employing an independent contractor, avoid responsibility for an injury resulting from the nonperformance of any duty or duties which, under the express terms of the agreement or by implication of law, are assumed by the undertaker.'
See the annotation of this point in 29 A.L.R. 736. See also 57 C.J.S. Master and Servant § 591, p. 365, and note 40, p. 367.
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...may not escape contractual liability to provide emergency room care by use of independent contractor-doctor is error); Mills v. Krauss, 114 So.2d 817 (Fla. 2d DCA 1959), cert. denied, 119 So.2d 293 (Fla.1960). The Next we turn to the questions involving the application of the sovereign immu......
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...276 Ala. 410, 162 So.2d 621, 626; Jack Cooper Transport Company v. Griffin (Okl.), 356 P.2d 748, 754, and citations; Mills v. Krauss (Fla.App.), 114 So.2d 817, 819; Capitol Chevrolet Co. v. Lawrence Warehouse Co. (1955, 9 Cir.Cal.), 227 F.2d 169, 173; Elliott Consolidated School District v.......
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