South Carolina Natural Gas Company v. Phillips, 8201.

• Decision Date: 28 March 1961
• Docket Number: No. 8201.,8201.
• Citation: 289 F.2d 143
• Parties: SOUTH CAROLINA NATURAL GAS COMPANY, and South Carolina Electric and Gas Company, plaintiffs, Appellants, v. D. L. PHILLIPS and Phillips Construction Company, Inc., defendants and third-party plaintiffs, and Freddie B. King, Richard King, and Everett King, Individually and as Co-Partners Trading and Doing Business Under the Name and Style of King Brothers or King Brothers Construction Company, third-party defendants, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

289 F.2d 143 (1961)

SOUTH CAROLINA NATURAL GAS COMPANY, and South Carolina Electric and Gas Company, plaintiffs, Appellants, v. D. L. PHILLIPS and Phillips Construction Company, Inc., defendants and third-party plaintiffs, and Freddie B. King, Richard King, and Everett King, Individually and as Co-Partners Trading and Doing Business Under the Name and Style of King Brothers or King Brothers Construction Company, third-party defendants, Appellees.

No. 8201.

United States Court of Appeals Fourth Circuit.

Argued November 22, 1960.

Decided March 28, 1961.

COPYRIGHT MATERIAL OMITTED

Arthur M. Williams, Jr., Columbia, S. C., and G. L. B. Rivers, Charleston, S. C. (Frank B. Gary and Gene V. Pruet, Columbia, S. C., on brief), for appellants.

Robert McC. Figg, Jr., Charleston, S. C. (William H. Vaughan, Jr., and Charles W. Waring, Charleston, S. C., on brief), for appellees.

Before SOPER, HAYNSWORTH and BOREMAN, Circuit Judges.

HAYNSWORTH, Circuit Judge.

A high pressure gas transmission pipeline belonging to the plaintiff, South Carolina Natural Gas Company, was fractured by a 30-ton Euclid pan earth mover owned by King Brothers, which was being operated by King's employees for the purpose of obtaining earth for use as fill on a nearby construction site. Escaping gas was ignited by sparks created by the steel pan scraping the ruptured pipe, or by contact with the hot manifold of the pan's 300-horsepower engine. The resulting fire was not extinguished until a day and a half later when repairs to the high pressure gas line were completed. Meanwhile, large quantities of gas had escaped and the fire had burned through overhead high voltage electric lines and destroyed a twin-pole electric line tower, owned by the plaintiff, South Carolina Electric and Gas Company. The losses suffered by the gas and electric companies were substantial.

To recover their damages, the gas and electric companies filed actions in the District Court against Phillips Construction Company, Inc. and its president, D. L. Phillips,¹ the general contractors on the construction job for which the earth fill being collected by King was destined. The partners doing business as King Brothers were not joined as defendants, for, as to them, there was no diversity of citizenship. At the joint trial of the two actions, the principal question was the responsibility of Phillips for King's fault. A jury returned a verdict for Phillips. On appeal, the question is whether Phillips, the general contractor, is responsible for the acts of King, the subcontractor, which caused the damage.

On this record, we find no basis for holding the general contractor legally responsible for the acts of the subcontractor.

In March, 1958 Phillips contracted to construct certain housing for Air Force personnel on the Charleston, South Carolina, Air Force Base. In one contract, Phillips subcontracted to King and to Micah Jenkins Nursery the basic grading, grubbing and landscaping. This subcontract required the subcontractors to supply earth fill for the pads for the houses. Under the contract, it is plain that the subcontractors could obtain earth for the pads where they chose, except that the specifications provided it should be obtained "outside the development area of Government owned property." So long as the delivered earth was of the kind and quality specified by the general contract, the general contractor had no contractual right to control its procurement.

There is no disagreement among the parties that, under the laws of South Carolina, a general contractor, or general employer, is not legally responsible for the collateral torts of a subcontractor, if the subcontractor is an independent contractor within the common meaning of that term. As is held generally, South Carolina's Supreme Court has held that whether or not one is an independent contractor turns upon the extent the general contractor reserves a right to control the manner and the means by which the desired result is to be accomplished. If there is no such reservation, an independent contractual relationship is created, and this relationship is not impaired or altered by the reservation of a right of inspection and approval of the quality of materials furnished and the result of the work.²

The plaintiffs, accepting this general proposition, complain that the jury was not instructed that the defendant had the burden of proving that King was its independent contractor. Reliance is placed upon cases³ in which South Carolina's Supreme Court has held that proof that the actor was engaged in work for the general employer establishes a prima facie case, which shifts the burden of going forward with evidence to the general employer if he relies upon the employment agreement to establish his immunity. In the Cooper case, the Court held the grant of a nonsuit improper when the plaintiff had shown that the actor was engaged in work for the defendant, and no employment agreement had been produced, nor had anyone offered proof of the terms of the employment. The Norris case involved two employers, each of whom claimed that the actor was an independent contractor. As to one, a full written employment agreement was produced, which the Court held established the relationship of independent contractor, and, therefore, the Court approved the direction of a verdict in favor of that employer. As to the second, however, there was no written employment agreement, and the Court held that proof that the actor was engaged in work for this employer was sufficient to shift "the burden of at least going forward with the evidence."

It is clear that the Supreme Court of South Carolina has not treated the burden of going forward with evidence as an evidentiary presumption. Any evidentiary effect is dissipated when the burden is met by the introduction of evidence of the terms of the agreement, and when the proof of the terms of the agreement is uncontradicted, a verdict may properly be directed for the general employer if the proven agreement establishes an independent contractual relationship. This is manifest in the holding as to the first employer in the Norris case, as to whom a direction of a verdict was approved, though the Court held that the case was properly submitted to the jury as to the second employer, who failed to meet the burden of going forward with evidence, or who did so inconclusively leaving the evidence open to conflicting inferences. See, also, Johnson v. Atlantic Coast Line R. Co., 217 S.C. 190, 60 S.E. 2d 226.

It would have been improper for the Court to have charged the jury, as requested by the plaintiffs, that the burden of proof was upon the defense and thus to convert a burden of going forward with evidence into an ultimate burden of persuasion. The defendant had met the burden of going forward by introducing the written contract. There was no dispute about its terms, no contradiction of them, and no contention that there was any other or supplemental agreement between the parties. Since, under the agreement, King was clearly an independent contractor, the Court could properly have given a binding instruction to the jury on this point, as the District Judge, himself, observed in denying the plaintiffs' motions for new trial.

The plaintiffs seek to bring themselves into one or more of the exceptions to the general rule that an employer is not legally responsible for the torts of an independent contractor. They say that the work to be done was of such an ultrahazardous nature that the employer ought not to be allowed to procure immunity from liability for the consequence of the work by electing to do it through an independent contractor, and that Phillips directed King to do what King did.

Certainly, there are a number of nondelegable duties which one may not transfer to an independent contractor and disclaim responsibility for their nonperformance. One of those duties arises in the conduct of ultrahazardous work. It was established in the blasting cases⁴ that one in control of land has such an affirmative duty to his neighbor that he must see for himself that dangerous explosives are not used upon his land in such a way as to injure his neighbor's person or property. He does not discharge that duty merely by engaging an independent contractor to do the work. The principle is stated in the Restatement⁵ and has been recognized on several occasions by the Supreme Court of South Carolina.⁶

The principle, however, is applicable only to work not of common occurrence which of itself involves risk of serious harm to others. Procurement of borrow is not that kind of work. It is done routinely and commonly without harm to others, and of itself creates no extraordinary risk of harm.

The plaintiffs look not to the general nature of the work, the procurement of borrow for the foundation pads, but to the operation of heavy and powerful earth moving equipment immediately above and across a high pressure gas transmission line, particularly after portions of the pipeline had been partially uncovered by the operator and could have been seen by him. Almost any activity which has caused harm would appear highly dangerous, however, when so particularized that the view is restricted to the immediate activity which in fact has caused the harm. If the same equipment had been operated in the vicinity of playing children and the operator did not watch where he was going, he might be charged with recklessness and said to have created grave risk of harm to the children, but that is a risk which does not necessarily inhere in the work of procuring borrow. It is the kind of hazard which may be created by the immediate actor, but which does not arise out of the nature of the work generally to be done.

Under the contract, King could have procured the earth wherever he chose. There was nothing in the contract which required him to use his equipment near the gas line. The fact that he used his equipment without regard to the...