Syllabus by the Court
1. 'In determining whether an independent contractor is to be held liable for damages resulting from the work in connection with which he has been employed, and especially from acts of omission, it is usually necessary to look for guidance to the question whether the injury resulted from the improper plans or directions by which his employment was defined, or from the improper execution of work properly planned. In such cases, if it appears that the contractor has followed the plans and directions of his employer and injury has resulted, the employer, and not the contractor, is to be held liable. For unskillful or negligent execution of the work the contractor (and usually not the employer) is liable.' Bell & Son v. Kidd & Roberts, 5 Ga.App. 518, 520, 63 S.E. 607.
2. In an action where exceptions specified by Code § 105-502 to Code § 105-501 are relied upon it is error to instruct the jury on any exception not authorized by the facts in the case.
3. It is not error to fail to charge without request on an issue not raised by both the pleadings and evidence.
Noxon Rug Mills, Inc. sued Edgar L. Smith d/b/a Smith Construction Company, and David L. Thomason and Thomas F. Hackeny d/b/a Thomason and Hackney to recover damages arising from the alleged concurring negligence of the defendants. The petition, as finally amended, alleged as to material parts: '(3) Plaintiff is a corporation and at the time of the damages herein sued for, it rented and occupied a building located on the west side of Fredrick Street in the City of Dalton, Whitfield County, Georgia. (4) The defendant, Edgar L. Smith, d/b/a Smith Construction Company was, and is a building contractor, and was a building contractor on April 9, 1961. (5) At said time the said Edgar L. Smith was engaged in erecting a building immediately north of the building then occupied by the plaintiff and used by the plaintiff in the manufacture, storage, and processing of rugs and carpeting. (6) At the north end of the building plaintiff rented there was a door approximately 10 feet 8 inches in width and 10 feet high. Immediately north of said door was a concrete loading ramp which sloped downward toward the building rented by the plaintiff. The north said of said ramp extended northward for approximately 8 feet and the north portion of said ramp was approximately
2 feet high, while the south portion was about 6 to 8 inches above ground level. (7) The said Edgar L. Smith was constructing a building north of the building occupied by the plaintiff and at said time was engaged in filling said area north of the building occupied by the plaintiff with dirt and other matter so as to provide a foundation and a floor area for said building under construction. (8) The concrete ramp sloping toward the door on said building was covered with dirt to a height of approximately 2 to 2 and one-half feet near the north edge of the building occupied by the plaintiff. Said dirt was piled against the closed door on the north side of the building. (9) The said Edgar L. Smith, d/b/a Smith Construction Company, hired the defendants, David L. Thomason and Thomas F. Hackney, d/b/a Thomason & Hackney, to haul and place fill dirt and materials and compact the same within the area where the building was to be built immediately north of and adjacent to the door leading to the north portion of the building occupied by the plant. Said dirt was hauled, spread and compacted by the said David L. Thomason and Thomas F. Hackney, d/b/a Thomason & Hackney, under the general supervision thereof of Edgar L. Smith, d/b/a Smith Construction Company and the said accident hereinafter described occurred in the course of and as the direct result of such operations and of the other facts as alleged in this petition. (10) The door opening on the north side of the building occupied by the plaintiff was about 6 to 8 inches above the ground area north of said building before any filling was done. (11) The defendants, Thomason & Hackney, hauled a large number of loads of dirt and fill material, the exact number of loads being unknown to the plaintiff but well known to the defendants and piled part of the same partly against said door and in the area north of said door opening and to a height of approximately 2 and one-half feet higher than the bottom of the north door opening leading into the plaintiff's building. (12) The said David L. Thomason and Thomas F. Hackney, d/b/a Thomason & Hackney, piled the dirt and fill material against the said door opening and over said ramp and against the door to a height of approximately 2 and one-half feet. The said David L. Thomason and Thomas F. Hackney, d/b/a Thomas & Hackney, then under the direction and supervision of the defendant Edgar L. Smith, used bulldozers and other grading and packing equipment and rolled and compacted said dirt in the area north of said building occupied by the plaintiff and left the same dammed against the door 8 to 10 inches higher than the dirt was about 2 to 3 feet north of said door, so that there was a gradual slope of said dirt up-wards towards said door. Said dirt completely covered the ramp sloping upwards northward from the door opening. Said dirt sloping upwards toward the door was intentionally placed and packed by defendants so as to serve as a dam or barrier against ordinary rainfall and the flowage and drainage of water north of the building occupied by plaintiff into the said building. The defendant, Edgar L. Smith, d/b/a Smith Construction Company, while generally supervising the work of the other defendants, did not retain the right to direct or control the time and manner of executing the work by the defendants, Thomason and Hackney, nor did the defendant Smith, interfere with and assume control of the work done by Thomason and Hackney so as to create the relation of master and servant. (13) Both Edgar L. Smith and David L. Thomason and Thomas F. Hackney, d/b/a Thomason & Hackney, were concurrently negligent in that they failed to cover the area next to said door opening and adjacent to said dirt with either tin or tar paper flashing such as would have prevented the dirt dam next to said building from breaking and water running into said building. The defendants were also negligent in that they failed to provide a proper drainage for said water so that in a heavy rain a large portion of water accumulated and was dammed up in the area immediately
north of said door opening heretofore referred to. Defendants were also negligent in that they failed to anticipate that the dam of dirt piled against said door would accidentally break in a heavy and sudden rainfall and allow water to flow in and around the cracks around said door. (14) On April 9, 1961, which was on a Sunday, the plaintiff's plant was closed and no one was working in said plant. The door on the north side was closed, but there was a crack under said door and a crack on both sides from one-half to one inch wide. On said date there was a sudden heavy rainfall and the dirt piled against the door hereinbefore referred to caused the water to be dammed and prevented the flow of water to the street and away from said door and due to the water backing up immediately north of said earthen dam adjacent to the building a large amount of water accumulated. (15) Plaintiff further shows that due to the large accumulation of water and the heavy rainfall the said dam and high area of dirt adjacent to said door suddenly and accidently broke and a large quantity of water suddenly and accidently ran against, down and around said door, and entered the building occupied by the plaintiff. (16) Plaintiff further shows that a large quantity of finished carpeting in rolls were stored south of said ramp and several...
