Smith v. Humphreyville

• Decision Date: 26 June 1907
• Parties: SMITH et al. v. HUMPHREYVILLE et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 495

104 S.W. 495

SMITH et al. v. HUMPHREYVILLE et al.^*

Court of Civil Appeals of Texas.

June 26, 1907.

Rehearing Denied October 10, 1907.

Appeal from District Court, Harris County; Chas. E. Ashe, Judge.

Action by Mary Smith and others against W. E. Humphreyville and others. Judgment for defendants. Plaintiffs appeal. Reversed and remanded in part; affirmed in part.

Bryan & McRae, for appellants. Baker, Botts, Parker & Garwood and C. R. Wharton, for appellee Houston Drug Co. Brashear & Dannenbaum, for appellee Wallace. Coleman & Abbott, for appellees Jensen and Johnson.

REESE, J.

This a suit by Mary Smith, widow of Charles Smith, and his two minor children, and Mattie Royster, his mother, against the Houston Drug Company, N. C. Jensen, W. G. C. Johnson, and T. H. Wallace, to recover damages for the death of the said Charles Smith, alleged to have been caused by the negligence of defendants. Damages are claimed in the sum of $20,000. The court instructed a verdict for the Houston Drug Company, and the case as to the other defendants was submitted to the jury. From a verdict and judgment for defendants, plaintiffs appeal.

The Houston Drug Company was the owner of a three-story brick building located on the corner of Preston and Caroline streets in the city of Houston. It made a contract with defendant Jensen to repair and remodel the building; the work to be done including the raising of the roof and the addition of another story. Jensen contracted with defendant Johnson to do the brickwork embraced in his contract with the drug company; part of such brickwork being the removal of the brick of the fire wall which extended above the roof, so as to allow the roof to be raised. Jensen also contracted with the defendant Wallace to raise the roof. In removing the brick from the fire wall preparatory to raising the roof, it was not necessary, nor was it contemplated, that the entire wall should be taken down, but that part of it should be taken down and removed so as to allow the roof to be raised without interference from the fire wall. The joists of the roof resting upon the wall were attached thereto by anchor plates, which were iron bars about 3½ inches wide and 12 inches long. The joists rested upon these anchor plates, which were turned up at each end; one end fitting into a place mortised into the joist, and the other end fastened into the wall. The anchor plates extended about four inches beyond the ends of the joists. In removing the brick from the fire wall the work was done so as to clear the joists; but these anchor plates, being covered with mortar, were not noticed and were not cleared. When the work of raising the roof began, one of these anchor plates hung or remained fastened in the joist, causing a displacement of the brick, several of which tumbled from the top of the wall to the street below upon the deceased, Smith, who was upon the sidewalk, killing him.

By their first assignment of error, appellants complain of the action of the trial court in instructing a verdict for the Houston Drug Company. The drug company pleaded that it had let the entire work to Jensen, and that by the terms of the written contract Jensen was an independent contractor, and on that account it was not liable. Appellants' first contention is that by the terms of this written contract the drug company retained such control over the possession of the building and Jensen, in subjecting him to the direction and supervision of its agent and architect Lorehn, in the manner of doing the work, as to estop the drug company from avoiding liability on the ground that Jensen was an independent contractor. The contract is very lengthy, embracing many complicated details of the work to be done, which was, generally, to remodel the building, raise the roof, and add another story. The distinctive features thereof, which are claimed to give it the character contended for by appellants, are substantially as follows: Jensen was to sufficiently perform and finish, under the direction and to the satisfaction of the architect, all the work required in remodeling the building and finish and complete it in a sound and workmanlike manner to the perfect satisfaction and approbation of the architect. If the work is not sufficiently explained by the drawings and specifications, Jensen was to apply to the architect for such further drawings and explanations as may be necessary and shall comply with the same so far as consistent with the original drawings and specifications, and in the event of doubt as to the meaning of the drawings or specifications the architect shall decide. Should any alteration be required in the work shown or described by the drawings or specifications, a fair and reasonable valuation of the work added or omitted shall be made by the architect, and the sum to be paid for the work increased or diminished accordingly. Jensen was to take down all portions of the work condemned by the architect as unsound or improper, or not conforming to specifications and drawings. Jensen was not to sublet or assign the contract, or any interest therein, without the written consent of the architect. The drug company is to provide all labor and material not included in the contract and contained in specifications of general work, in such a manner as not to delay the progress of the work. If Jensen refused or neglected to supply a sufficiency of properly skilled workmen, or material of proper quality, or failed in performance of any of the agreements contained in the contract, upon such failure being certified by the architect, the drug company was to be at liberty to provide the same and deduct its cost from amount due Jensen, and if the architect shall certify that such refusal or neglect is sufficient grounds therefor, the drug company shall be at liberty to terminate the employment and to enter upon possession of the building, take possession of materials, and employ some one else. It is not contended that the drug company exercised any control over the work, except such as was provided should be done by the architect by the terms of the contract. Lorehn testified that he did not direct the manner or details of the work, or have anything to do with the employment or discharge of the men, or with the management or direction of details of the work; that his going upon the work was merely for the purpose of inspection, to see that the work and materials complied with the contract.

It is true that the question is not what was done by the architect towards control of Jensen and his work, but what he had a right to do under the contract. If the employer had the right of control, it is immaterial that he did not exercise it. 16 Am. & Eng. Ency. of Law (2d Ed.) 188. But evidence as to what he did do is material in showing what he had a right to do, under the contract as it was understood by the parties. This approved definition of the term "independent contractor" is taken from 16 American & English Encyclopedia of Law (2d Ed.) p. 18: "Generally speaking, an independent contractor is one who, in rendering service, exercises an independent employment or occupation, and represents his employer only as to the results of his work, and not as to the means by which it is to be accomplished. The word `results,' however, is used in this connection in the sense of a production or product of some sort, and not of a service." Casement v. Brown, 148 U. S. 615, 13 Sup. Ct. 672, 37 L. Ed. 582, and other cases cited in note. In the same work (page 188) it is said that a reservation by the employer of the right by himself or his agent to supervise the work for the purpose merely of determining whether it is being done in conformity to the contract does not affect the independence of the contract, and in a note many authorities are cited, all of which support the proposition stated. In the case of Wallace v. Southern Cotton Oil Company, 91 Tex. Sup. 18, 40 S. W. 399, the question was whether one Davis was an independent contractor, with regard to the work being done, or an employé of the oil company, so as to render it liable for his negligence. The Supreme Court says: "If Davis was an independent contractor in the sense that the company had no right of control as to the manner in which the work was to be done, then he was not the servant of the company, and the plaintiff, having been employed by him, cannot recover. If, however the Southern Cotton Oil Company exercised control over the manner in which Davis was to do the work, or over the means by which it was to be done, or if the persons engaged in the work with Davis were under the control and management of said company, then Davis was but its employé, and Wallace was likewise but the servant of said company by virtue of his employment by Davis." In Simonton v. Perry (decided by this court) 62 S. W. 1090, the question was whether Naquin, the contractor to whom a contract was let by Perry for the construction of a building, was an independent contractor or an employé of Perry, the court says: "The contract gave Perry no right to control the method of doing the work, but did give him the right to require that the walls should be properly constructed. The proof nowhere shows any interference on the part of Perry either as to the method adopted by Naquin or as to whom he should employ to assist him. Perry assumed no control over the employés of Naquin, and did nothing more than demand that the brickwork should be done in a workmanlike manner; that is to say, he did nothing more than to require that the result should be up to the measure of the requirements." And it was held that Simonton's cause of action was clearly against Naquin, and not Perry. In the application of the general rule, the authorities are not altogether in harmony, but it...