Pittsfield Cottonwear Mfg. Co. v. Pittsfield Shoe Co.

• Decision Date: 05 November 1902
• Citation: 53 A. 807,71 N.H. 522
• Parties: PITTSFIELD COTTONWEAR MFG. CO. v. PITTSFIELD SHOE CO.
• Court: New Hampshire Supreme Court

53 A. 807

71 N.H. 522

PITTSFIELD COTTONWEAR MFG. CO.

v. PITTSFIELD SHOE CO.

Supreme Court of New Hampshire. Merrimack.

Nov. 5, 1902.

Exceptions from superior court; Stone, Judge.

Action by the Pittsfleld Cottonwear Manufacturing Company against the Pittsfleld Shoe Company. There was an order overruling a demurrer to the declaration, and defendants except. Exceptions overruled.

Case for negligence. The declaration states the following facts: The plaintiffs occupy a part of the lower floor of a mill building, called the "Drake & Sanborn Mill," consisting of a basement, three stories, and an attic. The remainder of the mill was in the possession of the Drake & Sanborn Shoe Company, though the attic was in fact uuoccu-pied. The plaintiffs' occupancy was under rental from the Drake & Sanborn Company, and began April 1, 1900. The defendants occupied another mill building, distant about 150 feet from the Drake & Sanborn building. Between the two mill buildings was a boiler house, containing boilers and an engine designed to furnish heat and power to the two mills. The boilers were connected by piping with the different floors of each mill, so that each mill could be supplied with steam and heated. The system was so constructed that the steam could be admitted to or shut off from either mill, and each floor of each mill building, as desired. The Drake & Sanborn mill was supplied, as a protection against fire, with an automatic sprinkler service, consisting of a system of pipes kept constantly filled with water under pressure. To keep the water in the pipes from freezing, bursting the pipes, and escaping and subjecting the machinery and stock in the mill to injury by water, it was necessary the buildings should be warmed at all times in cold weather. December 1, 1897, the defendants entered into a contract with the Drake & Sanborn Company to operate the boilers and furnish sufficient steam at all times to the heating pipes in the Drake & Sanborn mill to so warm the building that the water in the sprinkler pipes would not freeze. Under this contract the defendants had exclusive charge and control of the boiler house and the management of the heating plant therein contained. Upon the night of January 19-20, 1901, while this contract was in force and the defendants had the management of the boiler house and boilers, they carelessly permitted the fire to go out so that no steam was supplied for heat to the Drake & Sanborn mill, in consequence of which a sprinkler pipe in the attic of the mill froze and burst, and the escaping water flowed down through the mill into the lower story, and injured the plaintiffs' goods which were there stored. There were no means of heating the Drake & Sanborn mill except by steam from this boiler house. The plaintiffs knew of the defendants' contract with the Drake & Sanborn Company, and relied upon their faithful performance of it Upon the foregoing facts the declaration alleges that it was the duty of the defendants to exercise reasonable care and prudence in the management of the boiler house and in the maintenance of a proper fire under the boilers, and to furnish sufficient steam to heat the Drake & Sanborn mill and to prevent the freezing of the water in the pipes therein, and that if the defendants had exercised such care the pipes would not have frozen and burst, and the plaintiffs would not have been damaged. The defendants' demurrer was overruled at the October term, 1901, of the superior court, subject to exception.

Sargent, Niles & Morrill, for plaintiffs.

Albin & Shurtleff, for defendants.

PARSONS, C. J. No claim is made of lack of heat in that part of the premises occupied by the plaintiffs. Whether the occupation of the premises by the plaintiffs, as tenants of the Drake & Sanborn Company, and the consent of the defendants to furnish them with heat, presumed from their continuance in performance with knowledge of the change in occupation, gave the plaintiffs any right in the contract, so far as it related to the premises occupied by them, need not, therefore, be considered. The wrong alleged is the invasion of the plaintiffs' premises, and the injury to their goods, by water flowing from the sprinkler pipes in the attic of the Drake & Sanborn mill. As stated by the plaintiffs' counsel in argument, the complaint is not for "insufficient heat, but because of an excess of water." This legal wrong to the plaintiffs was not dependent upon their occupation of a portion of the Drake & Sanborn mill as tenants to the Drake & Sanborn Company. They would be entitled to protection from such invasion, and to recompense for loss so sustained if they were tenants to another, or occupied adjacent real estate under title in fee.

It has been said that, in ascertaining the "content of the law," "legal duties como before legal rights" (Holmes, Com. Law, 219); but in the administration of the law there must be found a correlative existence of rights and duties. If there is no wrong without a remedy, there can be no invasion of a legal right for which the law affords a remedy, unless there exists at the same time a legal duty upon some one to prevent or abstain from such invasion. The wrong to the plaintiffs being the incursion of water upon their premises, the next inquiry, in a philosophical search for a remedy, is: Upon whom does the law, upon these facts, impose the duty of preventing the invasion by water from which the plaintiffs suffered?

In the attic of the Drake & Sanborn mill, for a lawful purpose,—protection against fire,—water was so confined and maintained that there was probability of injury to others if it escaped. Upon the parties responsible for the collection and maintenance of this water the law imposes the duty of exercising care to prevent its escape. The care and control of the premises upon which the dangerous condition existed having been surrendered by the owners to others, the responsibility for the failure to exercise such care and control rests with the guilty parties, and not with the owners. Carter v. Berlin Mills, 58 N. H. 52, 42 Am. Rep. 572. In this situation, the only duty of the Drake & Sanborn Company toward the plaintiffs— the only right which the plaintiffs could insist upon against them—was the exercise of care to prevent injury to them. They had no ground of complaint if the building were not heated, if by any mechanical device the freezing of the water or its escape if frozen could be prevented, or if by due attention and watchfulness the flow of the water from the frozen or broken pipe into their premises could have been stopped before injury was done. Their right to damages for their injury is not dependent upon the fact of lack of care in heating. Any carelessness by which the water escaped upon them to their injury would have sustained their action.

It is suggested that, because the Drake & Sanborn Company employed an independent contractor to operate the boilers and to furnish them with heat, they were relieved from all liability for an injury to others, which might result from the failure to supply heat to the building. Carter v. Berlin Mills, 58 N. H. 52, 42 Am. Rep. 572, is cited. The argument, however, is based upon a misconception of the "independent contractor" rule, as it is called, and the principle of the case cited. The rule is that, where the liability sought to be enforced is based upon the principle of respondeat superior, if the per son for whose negligence recovery is sought is himself an independent contractor, or the employé of one over whom as to the detail of his work the defendant has no control, liability cannot be enforced by invoking that doctrine. But, where the duty sought to be enforced is one imposed by law upon the defendant, he cannot escape liability by showing that he employed another, over whom he had no control, to perform it for him.

"There are certain absolute duties resting upon natural persons and corporations, either by operation of law or by reason of having been voluntarily assumed. The law does not permit a person or corporation to cast off such duty upon an independent contractor so as to exonerate himself or itself for the consequences of its nonperformance. Of this nature is the duty * * * of guarding dangerous substances collected on their property." 1 Thomp. Comm. Neg. § 665; Cabot v. Kingman, 166 Mass. 403, 406, 44 N. E. 344, 33 L. R. A. 45. A master cannot relieve himself of any nondelegable duty owed by him to his servants by contracting for its performance. Story v. Railroad Co., 70 N. H. 364, 368, 48 Atl. 288; 1 Thomp. Comm. Neg. § 532. A railroad corporation cannot relieve itself from responsibilities imposed by law, as a part of its franchise, by contracting for the exercise of part of its authority by an independent contractor. Rolfe v. Railroad Co., 69 N. H. 476, 45 Atl. 251.

"Unquestionably, no one can be made liable for an act or breach of duty unless it be traceable to himself or his servant or servants in the course of his or their employment. Consequently, if an independent contractor is employed to do a lawful act, and in the course of the work he or his servants commit some casual act of wrong or negligence, the employer is not answerable. * * * That rule Is, however, inapplicable to cases in which the act which occasions the injury is one which the contractor was employed to do, nor, by a parity of reasoning, to cases in which the contractor is intrusted with the performance of a duty Incumbent upon his employer, and neglects its fulfillment, whereby an injury is occasioned." Pickard v. Smith, 10 C. B. (N. S.) 470, 480.

In Carter v. Berlin Mills, 58 N. H. 52, 42 Am. Rep. 572, the damage did not occur because the act which the Thurstons were employed to do was unlawful, nor because of the unlawful or improper construction of the dams. It was due to the improper use of the dams by the Thurstons. As the Berlin Mills had no control over the manner of use of the constructions...