Newman v. Sears, Roebuck & Co.

• Decision Date: 30 June 1950
• Docket Number: No. 7186,7186
• Citation: 17 A.L.R.2d 694,43 N.W.2d 411,77 N.D. 466
• Court: North Dakota Supreme Court
• Parties: , 17 A.L.R.2d 694 NEWMAN v. SEARS, ROEBUCK & CO. et al.

Page 411

43 N.W.2d 411

77 N.D. 466, 17 A.L.R.2d 694

NEWMAN v. SEARS, ROEBUCK & CO. et al.

No. 7186.

Supreme Court of North Dakota.

June 30, 1950.

Rehearing Denied Aug. 17, 1950.

Syllabus by the Court.

1. The general rule is that an employer is not liable for the torts of an independent contractor on the theory that the employer does not possess the power of controlling the independent contractor as to the details of the stipulated work.

2. If, however, the nature of the work for which the independent contractor is employed is such that the work when finished in the ordinary manner is inherently dangerous or a nuisance per se then the employer would be liable if the necessary precautions to protect the public are not taken.

3. Sec. 47-1612, NDRC 1943, defining obligations of lessor is construed and held to give the tenant new rights against the landlord but not otherwise to affect the common law relationship of landlord and tenant.

4. A landlord is not liable to his tenant for latent defect in the premises in the absence of warranty, deceit or fraud upon the part of the landlord.

5. Evidence is examined and it is held for reasons stated in the opinion:

1. That there is no evidence of negligence on the part of Sears, Roebuck & Company.

2. That a folding bed and the installation thereof are not inherently dangerous or a nuisance per se.

3. That the defendant, Dale, employed an independent contractor for the installation of the folding bed in question and even assuming that such contractor was negligent, Dale is not liable therefor.

4. That no warranty, deceit or fraud was employed on the part of defendant, Dale, in leasing the premises to the plaintiff.

Murray & Murray, Bismarck, attorneys for appellant.

Cox, Cox & Pearce, Bismarck, attorneys for respondent, Sears, Roebuck & Company.

Sullivans, Kelsch & Lord, Mandan, attorneys for respondent Dale.

GRIMSON, Judge.

The defendant, Alfred S. Dale, was the owner of an apartment house in the City of Bismarck, North Dakota. In August 1947, he ordered from Sears, Roebuck & Company, three folding beds. Sears, Roebuck & Company contracted their supply of said beds from the manufacturer, Superior Sleeprite Corporation of Chicago. When the Dale order was received Sears, Roebuck & Company directed the shipment of three beds to be made by the Superior Sleeprite Corporation direct to the defendant, Dale, at Bismarck. When they were received defendant Dale had one Christ Nelson install one of these beds in one of his furnished apartments. A Mrs. Holum was then the occupant of the apartment and immediately made use of the bed. Later defendant, Dale, and his wife occupied the apartment and used the bed. Then about the 27th. day of December 1947, the plaintiff and his wife rented the premises, including the bed. About 10 o'clock on the evening of Feb. 28, 1948, after plaintiff had gone to bed, the bed collapsed and plaintiff was seriously injured. For the damages so sustained plaintiff brings this action.

In his complaint the plaintiff claims that the defendant, Sears, Roebuck & Company manufactured or supervised the manufacture of this bed and gave instructions for its installation. That it was faulty and defective in design and construction and in particular that the screws furnished to attach it to the floor were insufficient to hold the bed in position; that because thereof said bed was inherently dangerous; that the defendant, Sears, Roebuck & Company had, or should have had, knowledge thereof; That it, nevertheless, sold the same without giving notice of such defect. Then he claims that the defendant, Dale negligently installed said bed with insufficient wood screws, which he knew, or should have known, made said bed inherently dangerous for use. He claims that the plaintiff rented the apartment furnished with this defective bed; that no notice of this latent defect was given the plaintiff although the defendant, Dale, knew or should have known thereof; that instead the bed was represented as safe for the purpose for which it was intended to be used. He claims that the negligence of the defendants in connection with the manufacture and installation of the bed resulted in the collapse of the bed and was the proximate cause of the injuries the plaintiff received. Both the defendants deny all negligence and defendant, Sears, Roebuck & Company, specifically denies that it had anything to do with the delivery or installation of the bed. A jury was waived and the case tried to the court. After hearing the evidence and the argument of counsel the court found for the defendants and dismissed the action. This appeal was taken and a trial de novo demanded.

The first question involved in this lawsuit is the liability of the defendants or either of them. Not unless liability is established does the amount of damages become material in this case. The District Court found no liability against the defendants so did not pass on the amount of damages.

The evidence shows that this folding bed is made of iron; that the feet under the head of the bed are welded to an angle iron frame which has seven holes through which lag screws attach it to the floor; that there were furnished with the bed for that purpose seven lag screws, of a size and design, specified to have a sufficient holding power when screwed into a wooden floor to hold the bed in place. These lag screws were 1 1/2 inches long, 5/16th. inches in diameter. Connecting the angle iron and the frame of the bed were six coil springs about 3/4ths. of an inch in diameter and 11 1/2 inches long. The coil was of 12 guage, steel wire, a little heavier than the wire used for ten penny nails. As the bed is lifted up or down these springs act as a counter balance making it easier to raise or lower the bed.

The District Court found that there was no fault in the design or manufacture of the folding bed and that there was nothing inherently dangerous in its construction or operation; that sufficient lag screws were furnished by the manufacturer for the proper installation of the bed; that the defendant, Sears, Roebuck & Company had nothing to do with the installation and was in nowise liable for the collapse of the bed or injuries of the plaintiff. That finding is in accord with the evidence.

The evidence further shows that there was a double floor 1 1/2 inches thick in the Dale apartment where this bed was installed. The top floor was of 13/16 inch oak, comparatively new. While Nelson testified that he did not remember the kind of screws he used in attaching the bed to the floor the evidence warrants the conclusion that he did not use the lag screws furnished, but, instead, used ordinary wood screws 1 1/2 inches long but only 5/32nds. inches in diameter. Not only the size but also the threads of the acrews show that the lag screws designated to hold the bed in place had at least four times the holding power of the wood screws used.

As the bed is lowered the coil springs stretch and pull up on the angle iron with considerable force. When the angle iron becomes loosened from the floor the pull of these springs causes the bed to roll forward, fall to the floor and the head to collapse over the bed. The evidence shows that that is what happened.

Assuming that the use by Nelson of those wood screws for fastening the bed was negligence and was the proximate cause of the bed becoming loose and collapsing to the injury of the plaintiff, the question arises whether the defendant, Dale, is liable therefor. That raises the question whether Nelson was an independent contractor or a servant of Dale.

As a general rule an employer is not liable for the torts of an independent contractor. 'This rule of the nonliability of an employer is based upon the theory that the characteristic incident of the relation created by an independent contract is that the employer does not possess the power of controlling the person employed as to the details of the stipulated work, and it is, therefore, a necessary judicial consequence that the employer shall not be answerable for an injury resulting from the manner in which the details of the work are carried out by the independent contractor.' 27 Am.Jur. 504; 18 A.L.R. 801 Annotation. An employer may become liable for the torts of his servants under the doctrine of respondeat superior, 57 C.J.S., Master and Servant, § 555, p. 266, 35 Am.Jur. 959.

Section 34-0401, NDRC 1943, defines a servant as 'one who is employed to render personal service to his employer otherwise than in the pursuit of an independent calling and who, in such service, remains entirely under the control and direction of the latter, who is called his master.' Of this definition, Chief Justice Bruce in Montain v. Fargo, 38 N.D. 432, 440, 166 N.W. 416, 417, L.R.A.1918C, 600, Ann.Cas.1918D, 826, writing for this court says: 'This definition of a servant where it is sought to distinguish between a servant and an independent contractor, affords by inference a definition of an independent contractor, an independent contractor being considered a person employed to execute work, who was not within the definition of a servant.'

'One of the most important tests to be applied in determining whether a person who is doing work for another is an employee or an independent contractor is whether the person for whom the work is done has the right to control, not merely the result, but the manner in which the work is done, as well as the method used.' Janneck v. Workmen's Compensation Bureau, 67 N.D. 303, 272 N.W. 188, 189. See also Bernardy v. Beals, 75 N.D. 377, 28 N.W.2d 374 and cases cited.

In determining whether a workman is an independent contractor or employee all the circumstances of the case and the attitude and intent of the parties must be considered. 27 Am.Jur. 480, 58 Am.Jur. 670. Knuffke v. Bartholomew, 106 Neb. 763; 184 N.W. 889. Lowe v. Chicago Lumber Co. of Omaha, 135 Neb. 735, 283 N.W. 841, 1 Schneider's Workmen's...