Prest-O-Lite Company v. Skeel

• Citation: 106 N.E. 365,182 Ind. 593
• Decision Date: 07 October 1914
• Docket Number: 22,427
• Parties: Prest-O-Lite Company v. Skeel
• Court: Supreme Court of Indiana

106 N.E. 365

182 Ind. 593

Prest-O-Lite Company v. Skeel

No. 22,427

Supreme Court of Indiana

October 7, 1914

Rehearing Denied December 31, 1914.

From Superior Court of Marion County (85,795); Joseph Collier Judge.

Action by Jonathan B. Skeel against the Prest-O-Lite Company. From a judgment for plaintiff, the defendant appeals.

Reversed.

Bernard Korbly, Willard New and John S. Berryhill, for appellant.

Joseph O. Carson and George W. Galvin, for appellee.

Spencer J. Cox., C. J., and Myers, J., not participating.

OPINION

Spencer, J.

This is an action by appellee for damages for personal injuries caused by the falling or collapse of a building owned by appellant. At the time of its collapse the building was being constructed by a firm of contractors, appellee was in the employ of the contractors and was at work on the roof as a carpenter.

The cause was tried on an amended second paragraph of complaint. A demurrer thereto for insufficient facts was overruled, and appellant answered in two paragraphs, the first being a general denial, the second that the building was being constructed by independent contractors. Trial was by a jury and the verdict for appellee; appellant's motion for a new trial was overruled, judgment rendered, and therefrom this appeal is prosecuted. The errors assigned are (1) overruling the demurrer to the amended second paragraph of complaint, and (2) overruling the motion for a new trial. The causes for a new trial as alleged, present for review here (1) the sufficiency of the evidence to support the jury's verdict; (2) the giving by the court on its own motion certain instructions, and the court's refusal to give certain instructions tendered by the appellant; (3) the refusal of the court to give a peremptory instruction in favor of the appellant at the close of appellee's evidence; and, (4) the refusal of the court to give such instruction at the close of all the evidence.

The evident theory of the complaint, and the one adopted at trial of the cause, is, that at about the time of the completion of the building the defendant negligently and unlawfully directed the contractor, and pursuant to such direction, the contractors made changes in the plans and specifications of the building by adding an additional story, by which the building was greatly overloaded and the dangers incident to its construction greatly increased; that the third story was added without the consent or knowledge of the inspector of buildings and was therefore in violation of a city ordinance requiring a permit from the building inspector in such cases; that because of its negligent overweighting and unlawful construction the building collapsed and fell.

We have carefully examined the record and find, that considering the evidence most favorable to appellee, together with all reasonable inferences therefrom, there is absolutely no proof as to the proximate cause of the collapse of the building by which appellee received his injury. But appellee contends that this is a case for the application of the doctrine of res ipsa loquitur or that attendant circumstances are themselves of such a character as to justify the inference that negligence is the cause of the accident. 34 Cyc. 1665. In this connection it is important to determine whether the contractors employed by appellant to erect the building, were servants of appellant or independent contractors.

Comparatively few persons are skilled in the science of constructing buildings, and necessarily they must depend upon those who have made it a study. Therefore when an owner has exercised due care to employ an architect to prepare plans and specifications, and builds accordingly, he should not be held liable for any defects unless they were such that he should have known of them. White v. Green (1904), 82 S.W. 329. Where the agreement provides for a result to be accomplished by the employe and leaves to the employe the means and methods by which the result is to be accomplished, then the relation is that of employer and contractor, and not that of master and servant. Where the arrangement is that some person, representing the owner or architect, is simply to give directions as to the work to be done, and is not to give, or has no authority to give, directions as to the manner in which it should be performed, or as to the means to be used in performing it, then the owner would not be liable for injury resulting from the method of its performance, as there would be no relation of master and servant. Sullivan v. Dunham (1898), 35 A.D. 342, 54 N.Y.S. 962. It is well settled that where one lets a contract to another to do a particular work, reserving to himself no control over such work except the right to require it to conform to a particular standard when completed, he is not liable for the negligence of the party to whom the contract is let. An independent contractor is one exercising an independent employment under a contract to do certain work by his own methods, without subjection to the control of his employer except as to the product or result of the work. When the person employing may prescribe what shall be done, but not how it is to be done, or who is to do it, the person so employed is a contractor and not a servant. The fact that the work is to be done under the direction and to the satisfaction of certain persons representing the employer, does not render the person contracted with to do the work a servant. New Albany Forge, etc., Co. v. Cooper (1891), 131 Ind. 363, 30 N.E. 294, and cases cited; Indiana Iron Co. v. Cray (1898), 19 Ind.App. 565, 48 N.E. 803; Vincennes Water Supply Co. v. White (1890), 124 Ind. 376, 24 N.E. 747.

The contract in this case provided that the owner, through a person called an inspector, should have the authority to examine the materials furnished and to condemn that which did not conform to the prescribed standard. This inspector could also arrest the progress of the work if he found that it was not conforming to the standard provided in the contract. But the authority of the inspector in these and all other matters connected with the construction of the building, only gave him the power to see that a certain standard was lived up to by the contractors as the work progressed from time to time. The means and methods of attaining those standards he had no control over. The difference between an independent contractor and a mere servant is not to be determined solely by the pretention of a certain kind or degree of supervision by the employer. It is to be determined by the contract as a whole,--by its spirit and essence,--and not by the phraseology of a single sentence or paragraph. Taking the contract as a whole it clearly shows that the parties employed by the defendant to erect his building were independent contractors. Foster v. City of Chicago (1902), 197 Ill. 264, 64 N.E. 322; Staldter v. City of Huntington (1899), 153 Ind. 354, 55 N.E. 88; Wabash, etc., R. Co. v Farver (1887), 111 Ind. 195, 60 Am. Rep. 696, 12 N.E. 296. The following case seems so clearly in point that we quote from it as follows: "Obviously, the defendants were independent contractors. The plans and specifications were prepared and settled by the railroad companies; the size, form and place of the piers were determined by them, and the defendants contracted to build piers of the prescribed form and size and at the places fixed. They selected their own servants and employes. Their contract was to produce a specified result. They were to furnish all the material and do all the work, and by the use of that material and the means of that work were to produce the completed structures. The will of the companies was represented only in the result of the work, and not in the means by which it was accomplished. This gave to the defendants the status of independent contractors, and that status was not affected by the fact that, instead of waiting until the close of the work for acceptance by the engineers of the companies, the contract provided for their daily supervision and approval of both material and work. The contract was not to do such work as the engineers should direct, but to furnish suitable material and construct certain specified and described piers, subject to the daily approval of the companies' engineers. This constant right ...