Pacific Fire Ins. Co. v. Kenny Boiler & Mfg. Co.
| Decision Date | 31 December 1937 |
| Docket Number | No. 31386.,No. 31408.,31386.,31408. |
| Court | Minnesota Supreme Court |
| Parties | PACIFIC FIRE INS. CO. et al. v. KENNY BOILER & MFG. CO. |
Appeal from District Court, Ramsey County; Richard D. O'Brien, Judge.
Action by the Pacific Fire Insurance Company and another against the Kenny Boiler & Manufacturing Company. From an order denying motion for judgment notwithstanding and granting motion for new trial, plaintiffs and defendant appeal.
Affirmed.
O'Brien & Quinlivan, of St. Paul, for respondents-appellants.
Alfred R. Sundberg, of St. Paul, for appellant-respondent.
Prior to June 10, 1935, the United States Gypsum Company maintained a water tower on the premises upon which its St. Paul plant is situated. The tank was supported by three legs which rested upon the top of the walls of one of its buildings. Each leg consisted of two channel irons held together and reinforced by steel straps riveted to them. In May, 1935, defendant by contract with the United States Gypsum Company undertook to manufacture steel plates to replace the straps on the lower legs and to attach the plates to the legs. Defendant manufactured the plates but delegated the task of attaching them to one Nelson, an experienced steel erector. In order to attach the plates, it was necessary first to remove the steel straps. To compensate for the weakening of the leg from which the straps were first removed, Nelson erected a 6×6 timber next to the weakened leg and placed a jack on the upper end of the timber so as to lend support to the tank. Two hours after the work of removing the straps was commenced on the morning of June 10, the tank for some cause fell on to the building upon which the legs rested, demolishing a part of it. The property damage was paid by the plaintiff insurance companies which, under their subrogation rights, bring suit on the theory that the fall of the tank was due to the negligence of Nelson in the performance of his contract with defendant, and that defendant is subject to liability for such negligence.
For the purpose of this appeal it may be conceded that Nelson was an independent contractor. The trial court instructed the jury that, if he was, defendant was not liable. After a verdict for defendant, plaintiffs moved for judgment notwithstanding or for a new trial. A new trial was granted on the ground that the court erred in charging the jury in the above manner. Defendant appeals from the order granting a new trial, and plaintiffs appeal from the order denying their motion for judgment notwithstanding. The appeals were argued together and will be decided together.
The questions presented are (1) whether a contractor is liable to his contractee for damage to the realty of the latter caused by the negligence of an independent subcontractor while performing a part of the contractual duties of the contractor; and (2) whether it conclusively appears that the contractee was not negligent.
1. As a limitation to the doctrine of respondeat superior this court has laid down the rule that an employer is not liable for the consequences of the negligent acts of an independent contractor (Aldritt v. Gillette-Herzog Mfg. Co., 85 Minn. 206, 88 N.W. 741; Restatement, Torts, § 409) unless he adopts or ratifies the negligence of the independent contractor which causes the harm of which complaint is made (Bast v. Leonard, 15 Minn. 304 (Gil. 235). But the tendency is to enlarge the operation of the doctrine of respondeat superior, and it is a limit which has often been exceeded. Elliason v. Western C. & C. Co., 162 Minn. 213, 202 N.W. 485; Salmond on Torts, 9th Ed., § 31. Indeed it would be proper to say that the rule is now primarily important as a preamble to the catalog of its exceptions. Harper on Torts, § 292; Restatement, Torts, §§ 410-429.
One exception is the rule imposing liability upon a lessor for harm suffered by his lessee because of the negligence of an independent contractor employed by the lessor to make repairs which the lessor is bound by covenant with the lessee to make. Restatement, Torts, § 419; Peerless Mfg. Co. v. Bagley, 126 Mich. 225, 85 N.W. 568, 53 L.R.A. 285, 86 Am.St.Rep. 537. This last situation is persuasively analogous to the instant...
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