Pender v. Raggs

• Decision Date: 09 November 1896
• Docket Number: 23
• Citation: 178 Pa. 337,35 A. 1135
• Parties: James Pender v. George Raggs, James Ramsden and George P. Kretz, Kaskel Solomon and Charles Ruben, trading as Solomon & Ruben, Appellants
• Court: Pennsylvania Supreme Court

35 A. 1135

178 Pa. 337

James Pender v. George Raggs, James Ramsden and George P. Kretz, Kaskel Solomon and Charles Ruben, trading as Solomon & Ruben, Appellants

No. 23

Supreme Court of Pennsylvania

November 9, 1896

Argued October 27, 1896

Appeal, No. 23, Oct. T., 1896, by defendants, from judgment of C.P. No. 3, Allegheny Co., Aug. T., 1892, No. 213, on verdict for plaintiff. Affirmed.

Trespass for personal injuries. Before KENNEDY, P.J.

The facts appear by the charge of the court.

When George P. Kretz was on the stand plaintiff offered to prove by him that the specifications required that Ruben, one of the defendants, was to be allowed to occupy the two stores that he occupied to carry on his business until the two stores next to the Duquesne Bank could be made ready to be occupied by him while the building was being erected; that the two stores next to the Duquesne Bank were two new stores to be built and not two stores standing.

Defendants objected to the offer as incompetent, that the language in the specifications speaks for itself, and it is not for the witness to construe that language, but for the judge.

Objection overruled. Exception allowed and bill sealed.

Mr Kretz testified as follows:

"The specifications by the two stores next to the Duquesne Bank mean that I was to erect them so Mr. Ruben could occupy them temporarily as a lower floor to carry on his business for a specified time set there." [13]

The court charged the jury in part as follows:

It seems that about the first of April, 1892, these defendants Solomon & Ruben, owning or controlling a large lot of ground on the corner of Smithfield street and Diamond alley, in this city, fronting one hundred and sixty feet on Smithfield street and running along Diamond street ninety feet, desired to erect a new building thereon, and made a contract with one George P. Kretz for the removal of the old buildings on the lot and the erection of the new one. Mr. Kretz sublet the contract for the removal of the old buildings to Ramsden &amp Raggs. Both of these contracts, that is, the contract between Solomon & Ruben and Kretz, and the contract of Kretz with Ramsden & Raggs were in writing, but with the contract between Kretz and Ramsden & Raggs you have no concern. The contract between Solomon & Ruben and Kretz, as I have told you, was in writing, and is what was called an independent contract, that is, under this contract for the removal of the old buildings and the erection of the new one Mr. Kretz was an independent contractor. This is one of the questions of law which you have heard discussed, and I instruct you that so far as this contract is concerned it was an independent one, and Mr. Kretz was an independent contractor. And if the work had been done under that contract without any interference, which I will hereafter explain to you, on the part of Solomon & Ruben, the defendants, there would be no liability upon their part to the plaintiff in this case, and there could be no recovery here.

So that leads us to the first question of fact for you to determine; was there interference here, such interference on the part of the defendants, Solomon & Ruben, in this work as would render them liable for the damages resulting from this accident to the plaintiff? In order to entitle the plaintiff to recover from these defendants he must satisfy you that there was such interference on the part of the defendants, Solomon & Ruben, that amounted to an assumption by them of the direction and control of the work. You have heard the discussion of the contract, that there were certain reservations made to Solomon & Ruben. For instance, they reserved the right to occupy the store that they were in at the time of the execution of the contract, which was about the middle of the lot, for a certain length of time, and afterwards to occupy temporarily the two stores on the lower end of the lot next to the Duquesne Bank, and that the contractor, Kretz, was to interfere with them and their business as little as possible in the prosecution of his work under the contract. But that, gentlemen, was not such a reservation to Solomon & Ruben as would take from this contract its character as an independent one. I so instruct you. But as I have said to you, and that you will bear in mind, in order to entitle the plaintiff to recover damages at all in this case, he must satisfy you that there was such interference on the part of Solomon & Ruben as amounted to an assumption of the control and direction of the work done under the contract.

The plaintiff claims that after the work had been prosecuted to a certain extent, and Solomon & Ruben had moved into the two stores next to the Duquesne Bank, and were occupying them that part of the work to be done there was the erection of a stack in the neighborhood of this wall which fell subsequently, and that, in the work of the digging of the hole for the erection of the stack, Solomon & Ruben interfered to such an extent as amounted to an assumption upon their part of the direction and control of the work, in that, they prevented the contractor, Kretz, and...