Pfau v. Wash. A. Williamson.

• Decision Date: 31 January 1872
• Citation: 1872 WL 8089,63 Ill. 16
• Parties: JOHN L. PFAUv.WASHINGTON A. WILLIAMSON.
• Court: Illinois Supreme Court

63 Ill. 16

1872 WL 8089 (Ill.)

JOHN L. PFAU

v.WASHINGTON A. WILLIAMSON.

Supreme Court of Illinois.

January Term, 1872.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Adams county; the Hon. JOSEPH SIBLEY, Judge, presiding.

Messrs. GRIMSHAW & SCOGGAN, for the appellant.

Mr. JOHN H. WILLIAMS, and Messrs. BROWNING & BUSHNELL, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action on the case, brought by appellant in the Adams circuit court, against appellee. The declaration contains several counts, in which it is averred that appellant was the owner of a lot in the city of Quincy, and that he employed appellee, who was a mechanic and builder, to erect a house, with its appurtenances thereon, and to dig a cellar for the same; and that he dug the cellar and built the house, and that it was the duty of appellee to use due care whilst so engaged; but it is averred that he did not use due care, caution and skill, but carelessly, negligently, unskillfully and imprudently did the work in excavating the cellar, and did not sufficiently protect it by fencing or otherwise, and by reason of appellee's negligence, etc., as aforesaid, one Patrick Reynolds, whilst passing along the street as he lawfully might, whilst using due care, etc., fell into the cellar and was thereby greatly injured; that Reynolds thereupon sued appellant in the Adams circuit court and obtained a judgment against him for $1200, besides costs, and that he had incurred large expense for attorneys' fees, all of which he had paid.

In the second, and some of the other counts, it is averred that the cellar extended out under the street for the space of twelve feet; and it is also averred that it was the duty of appellee to fence or otherwise guard or protect the public from falling into the excavation under the street or sidewalk, but that he had failed so to do, whereby the injury occurred to Reynolds, and appellant had been compelled by suit to pay damages for the injury sustained by Reynolds; and that, by reason of the negligence, etc., of appellee, in the excavation of the cellar, and the injury to Reynolds, and the loss sustained by appellant by reason of having been compelled to pay the judgment rendered against him in favor of Reynolds, appellee became liable to refund the same to appellant.

A trial was had in the court below, resulting in favor of defendant, and plaintiff brings the record to this court and asks a reversal.

In the case of Scammon v. The City of Chicago, 25 Ill. 424, it was held that, where the owner of a lot contracts with a skillful, reliable and competent builder for the erection of a house thereon, and surrenders possession of the property to the builder for the purpose of erecting the structure, and the work is not done under the direction of the owner, and injury ensues to a third person from the negligence of the contractor, and not of the owner, such contractor is not the servant of the owner, and is liable for the injury inflicted. In this case, as in that, the owner surrendered the possession and entire control of the ground to the contractor. In the specifications is this provision: “The contractor must complete the building throughout, as the proprietor will have nothing to do with it except to see that the plans and specifications are strictly adhered to; hence the putting the whole thing in one job.” The owner covered the roof and made the window caps of galvanized iron, but so far as we can see did nothing else in reference to the completion of the building.

The specifications point out particularly how that part of the cellar under the sidewalk was to be completed. And we fail to find that appellant, at any time, gave appellee any directions as to the manner in which he should perform his work thereon, or how it should be constructed; but so far as the record discloses, appellee did the work under and according to the contract and its specifications. Nor did the fact that appellant reserved the right to go on the premises to see that the work was done according to the plans and specifications, change the relations of the parties. Appellee did not thereby become the servant of appellant. He was still in possession, and was performing the work under his contract and not under the directions and control of appellant, because he had the right to inspect the work.

Whilst the agreement between the parties is silent as to who shall guard and protect the public against accident or injury from this excavation, it is provided for by the city ordinances. Section 3 of ordinance 40 declares that, “No city officer,...